Wed, Dec 16, 2015 - Page 15 News List

Samsung appeals to US Supreme Court

‘TOTAL PROFIT RULE’:Major technology firms and experts said the legal framework for design patents is based on a law to protect carpet and ornamental spoon designs

NY Times News Service

Less than two weeks ago, Samsung Electronics Co Ltd agreed in a US district court to pay Apple Inc US$548 million in damages, as their years-long legal conflict appeared to be tapering off to a ceasefire.

However, the clash is not yet over.

On Monday, Samsung filed an appeal with the US Supreme Court, arguing that the legal framework for design patents — at the center of the suits between the companies — is outdated for the modern digital world. Samsung says the issue at stake extends well beyond the courtroom skirmishes of the two large corporations.

The case, if heard, could have far-reaching implications for design patents, which cover how a product looks, and the sort of financial penalties allowed under the law. Design patents are far less common than utility patents, which cover how a product functions.

The legal framework for design patents, according to Samsung, some other major technology companies and legal experts, is largely shaped by a 19th-century law intended to protect the designs of carpets, fireplace grates and ornamental spoons.

Back then, the design was the heart of such products, so seizing most or all of the gains of a copycat — known as the “total profit rule” — was justified.

However, a complex product today like a modern smartphone is a dense bundle of intellectual property with more than 100,000 patents conceivably laying claim to some small aspect of the device.

Apple declined to comment publicly about the appeal, but it has argued in the past that the three design patents Samsung is challenging represent the essence of the iPhone — the look of its user interface, its rectangular display and its rounded shape and flat front. A jury agreed with Apple, as did the federal appeals court that specializes in patent cases.

In its appeal on Monday, Samsung declared that the sweeping ruling against it, if left in place, would set a precedent “to reward design patents far beyond the value of any inventive contribution.”

In a supporting brief filed with the US Court of Appeals for the Federal Circuit, eight technology companies including Google Inc, Facebook Inc and eBay Inc and the former Hewlett-Packard Co said the ruling on design patents against Samsung, if left to stand, would “lead to absurd results and have a devastating impact on companies.”

Several of the companies joining that brief in support of Samsung compete with Apple in one market or another. Most prominent among them is Google, whose Android mobile operating system runs most of the smartphones produced by Samsung, Apple’s leading rival, and other smartphone makers.

“The law was written for a time long before the smartphone was invented,” said Mark Lemley, a law professor and director of the Stanford University program in law, science and technology, who has previously filed a brief in support of Samsung.

Lemley’s argument in support of Samsung, filed in the appeals court, was signed by more than two dozen law professors.

Stylish design defines Apple’s products and its corporate reputation. On two of the three patents in dispute, the named inventors include the two people most identified with Apple design, Steve Jobs, the company’s cofounder, and Jonathan Ive, its chief design officer.

In the jury trial, Apple submitted an internal Samsung memo saying the iPhone showed that Samsung faced a “crisis of design.” Apple’s evidence included a series of photographs of Samsung smartphones before and after the iPhone was introduced in 2007, and the models increasingly came to resemble Apple’s design.

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