The latest chapter in the Apple v. Samsung saga, previously blogged about here, involves an amicus brief filed by several large technology firms in support of a rehearing on the amount of damages owed to Apple by Samsung. If granted, the Court of Appeals for the Federal Circuit will hear again arguments that those damages should be based on profits attributable to only the infringing portion of the Samsung device, rather than profits made on the entire device. If the Federal Circuit is persuaded, the decision could lower exposure for patent infringement across the industry. 

Samsung was found to infringe several of Apple’s design patents related to specific design features of a smartphone, and not necessarily an entire phone. 35 U.S.C. § 289 authorizes courts to award the total profit from the article of manufacture bearing the design. Thus, the original damage award was based on Samsung’s profits from the sales of the smartphone. Samsung previously argued that the damage award should only be based on a portion of the profits attributable to the specific features of the phone which infringe the design patents, which was denied. Several large technology firms have filed an amicus brief in support of a petition for rehearing on this position. Google, Facebook, Limelight Networks, and others, have been heavily involved in patent litigation in recent years so it comes as no surprise the these companies would support a narrowing of the statute which would lead to reduced exposure overall in patent infringement lawsuits. 

The amici argue that consumer electronics are made of many complex systems, and the shape of a smartphone bezel, or the arrangement of its icons is a small portion of the design. Additionally, the amici aruge that § 289 only applies to relatively simple products, and that complex products should be subject to a narrower reading of the statute.  However, it will be difficult to correctly ascertain the precise portion of profits that are allocable to an infringing feature. 

A copy of the amicus brief can be found here