IMHO even the most die-hard Apple fan should hope SCOTUS accepts this one. Based on the law as it's been interpreted a "patent troll" armed with the right design patent could legally lay claim to every penny of profit Apple has seen from the Apple Watch for instance (or God-forbid one of the iPhone models). A court finding Apple to be infringing would have no choice but to award 100% of the profits to the patent holder. Not just some portion but 100%. In essence design patents would wield more power and thus much more valuable to non-practicing entities than any utility/technical patent if the Supreme Court declines to hear the appeal.
Personally I think Apple is taking a chance of cutting off its nose to spite its face. I simply don't understand why they're taking the position they are regarding design patent claims against Samsung. A few hundred million now may come back to bite them in the butt.
Pages marked 23 and 26 (or 37 and 41 in the PDF) begin what I would see as particularly meritorious arguments.
Can't seem to read the doc on my iPad. It keeps wanting to force me to download some app that has in-app purchases. Must I download their app to view the doc? Perhaps if I drag myself away from the comfort of my hammock and go inside to the computer... yeah, maybe later.
What happens to the US when Herbert Hoover II tanks the economy even worse, you mean? Tariffs are terrible.
Tariffs are how the federal government was funded for decades. Destroy the income and property tax and get federal funding from businesses both foreign and domestic.
IMHO even the most die-hard Apple fan should hope SCOTUS accepts this one. Based on the law as it's been interpreted a "patent troll" armed with the right design patent could legally lay claim to every penny of profit Apple has seen from the Apple Watch for instance (or God-forbid one of the iPhone models). A court finding Apple to be infringing would have no choice but to award 100% of the profits to the patent holder. Not just some portion but 100%. In essence design patents would wield more power and thus much more valuable to non-practicing entities than any utility/technical patent if the Supreme Court declines to hear the appeal.
Personally I think Apple is taking a chance of cutting off its nose to spite its face. I simply don't understand why they're taking the position they are regarding design patent claims against Samsung. A few hundred million now may come back to bite them in the butt.
Pages marked 23 and 26 (or 37 and 41 in the PDF) begin what I would see as particularly meritorious arguments.
Can't seem to read the doc on my iPad. It keeps wanting to force me to download some app that has in-app purchases. Must I download their app to view the doc? Perhaps if I drag myself away from the comfort of my hammock and go inside to the computer... yeah, maybe later.
It shouldn't require anything as it's a simple pdf.
IMHO even the most die-hard Apple fan should hope SCOTUS accepts this one. Based on the law as it's been interpreted a "patent troll" armed with the right design patent could legally lay claim to every penny of profit Apple has seen from the Apple Watch for instance (or God-forbid one of the iPhone models). A court finding Apple to be infringing would have no choice but to award 100% of the profits to the patent holder. Not just some portion but 100%. In essence design patents would wield more power and thus much more valuable to non-practicing entities than any utility/technical patent if the Supreme Court declines to hear the appeal.
Personally I think Apple is taking a chance of cutting off its nose to spite its face. I simply don't understand why they're taking the position they are regarding design patent claims against Samsung. A few hundred million now may come back to bite them in the butt.
Pages marked 23 and 26 (or 37 and 41 in the PDF) begin what I would see as particularly meritorious arguments.
My brief perusal of the filing shows it contains copious misdirection or "white lies". For example, the large screen smartphone designs from 2006, predating the iPhone, were for "slider" designs, and these designs don't look nearly as similar to the iPhone as the "candybar" designs Apple sued over. The sliders represent a "straw man" argument.
As for page 26, infringement of intellectual property rights--especially willful infringement--deserves severe punishment and penalties. I don't understand why Samsung would risk the Supremes deciding that their infringement was willful, which it appears to have been. (And in the unlikely event that they take up the case, the Supremes won't be chumps like the jury was.) Willful infringement can incur a punative fine that is triple the actual damages, with no option to appeal beyond this level. It's like Samsung is willing to cut off its own head to spite its face.
The Supreme Court will not even bother with this (@gatorguy notwithstanding). Too much scummery on Samsung's part for them to want to hang their hats on it.
Even the New York Times -- which is far from partial to Apple -- agrees (sort of).
IMHO even the most die-hard Apple fan should hope SCOTUS accepts this one. Based on the law as it's been interpreted a "patent troll" armed with the right design patent could legally lay claim to every penny of profit Apple has seen from the Apple Watch for instance (or God-forbid one of the iPhone models). A court finding Apple to be infringing would have no choice but to award 100% of the profits to the patent holder. Not just some portion but 100%. In essence design patents would wield more power and thus much more valuable to non-practicing entities than any utility/technical patent if the Supreme Court declines to hear the appeal.
Personally I think Apple is taking a chance of cutting off its nose to spite its face. I simply don't understand why they're taking the position they are regarding design patent claims against Samsung. A few hundred million now may come back to bite them in the butt.
Pages marked 23 and 26 (or 37 and 41 in the PDF) begin what I would see as particularly meritorious arguments.
Florian Mueller at http://www.fosspatents.com echos what you are saying with his take, and he is no dummy on this sort of matter:
"At this stage, it's not about who's right or wrong. It's only about whether the legal questions raised merit Supreme Court review, which has legal as well as economic implications.
If the Supreme Court denied certiorari, the Federal Circuit ruling would be the last word on the issue, and as a result, design patents would be stronger than they should be and give their holders leverage beyond their reasonable value. A patent troll might acquire a design patent and sue a company like Google or Facebook--or Apple--for 100% of its profits. Worse still, and as Samsung's petition explains: the next patentee with a different design patent that is also a tiny part of a product could ask for the same. And so could potentially thousands of design patent holders, driving even the healthiest company into bankruptcy in such a scenario. If this here wasn't an issue of major importance to the U.S. economy, what would be?"
My take on this is that it is an opportunity to promote reforms of the PTO, which is woefully behind the times.
Pages marked 23 and 26 (or 37 and 41 in the PDF) begin what I would see as particularly meritorious arguments.
Can't seem to read the doc on my iPad. It keeps wanting to force me to download some app that has in-app purchases. Must I download their app to view the doc? Perhaps if I drag myself away from the comfort of my hammock and go inside to the computer... yeah, maybe later.
Its the top story and you can click the little "download" button which is the first button to the right of "Scribd." at the bottom of the document and article. Opens right up in Safari on my iPad for nice and easy reading. Hope that is helpful.
IMHO even the most die-hard Apple fan should hope SCOTUS accepts this one. Based on the law as it's been interpreted a "patent troll" armed with the right design patent could legally lay claim to every penny of profit Apple has seen from the Apple Watch for instance (or God-forbid one of the iPhone models). A court finding Apple to be infringing would have no choice but to award 100% of the profits to the patent holder. Not just some portion but 100%. In essence design patents would wield more power and thus much more valuable to non-practicing entities than any utility/technical patent if the Supreme Court declines to hear the appeal.
Personally I think Apple is taking a chance of cutting off its nose to spite its face. I simply don't understand why they're taking the position they are regarding design patent claims against Samsung. A few hundred million now may come back to bite them in the butt.
Pages marked 23 and 26 (or 37 and 41 in the PDF) begin what I would see as particularly meritorious arguments.
Yeah, but the US Supreme Court is notably a corrupt one (Thomas, Scalia) leaning strongly towards right-wing politics and making fairly regular "political" decisions in that same vein. Scalia in particular makes most of his decisions based on his personal animus. It would be a total crap shoot to take the case there. Literally *anything* could happen and you can be sure it won't have much to do with the actual law on the subject.
How is it corrupt? Because it doesn't have enough liberal ls? ---
Are you fracking for real buddy, Georgie boy the moron prince loaded the place with right wing POS? IF anything, the Supreme court is teaming right wing ideologues forging the law as they see fit.
Are you going to defend Citizen United, a decision thaty undoubtably one of the worse ever and will have to be overturned eventually or the even more stupid Hobby lobby crap which makes no sense no matter how often you read the decision (and has been commented ad nauseum with utter disbelief by the legal community) and will have many long term collateral damages.
IMHO even the most die-hard Apple fan should hope SCOTUS accepts this one. Based on the law as it's been interpreted a "patent troll" armed with the right design patent could legally lay claim to every penny of profit Apple has seen from the Apple Watch for instance (or God-forbid one of the iPhone models). A court finding Apple to be infringing would have no choice but to award 100% of the profits to the patent holder. Not just some portion but 100%. In essence design patents would wield more power and thus much more valuable to non-practicing entities than any utility/technical patent if the Supreme Court declines to hear the appeal.
Personally I think Apple is taking a chance of cutting off its nose to spite its face. I simply don't understand why they're taking the position they are regarding design patent claims against Samsung. A few hundred million now may come back to bite them in the butt.
Pages marked 23 and 26 (or 37 and 41 in the PDF) begin what I would see as particularly meritorious arguments.
Are you an IP lawyer? My brother is. I'll have to see what he thinks. I don't think you're correct about the potential damages to Apple, either on face or what it means precedent-wise.
Are you fracking for real buddy, Georgie boy the moron prince loaded the place with right wing POS? IF anything, the Supreme court is teaming right wing ideologues forging the law as they see fit.
Are you going to defend Citizen United, a decision thaty undoubtably one of the worse ever and will have to be overturned eventually or the even more stupid Hobby lobby crap which makes no sense no matter how often you read the decision (and has been commented ad nauseum with utter disbelief by the legal community) and will have many long term collateral damages.
I'm not sure corrupt is the right word. Stupid, perhaps.
IMHO even the most die-hard Apple fan should hope SCOTUS accepts this one. Based on the law as it's been interpreted a "patent troll" armed with the right design patent could legally lay claim to every penny of profit Apple has seen from the Apple Watch for instance (or God-forbid one of the iPhone models). A court finding Apple to be infringing would have no choice but to award 100% of the profits to the patent holder. Not just some portion but 100%. In essence design patents would wield more power and thus much more valuable to non-practicing entities than any utility/technical patent if the Supreme Court declines to hear the appeal.
Personally I think Apple is taking a chance of cutting off its nose to spite its face. I simply don't understand why they're taking the position they are regarding design patent claims against Samsung. A few hundred million now may come back to bite them in the butt.
Pages marked 23 and 26 (or 37 and 41 in the PDF) begin what I would see as particularly meritorious arguments.
Yeah, but the US Supreme Court is notably a corrupt one (Thomas, Scalia) leaning strongly towards right-wing politics and making fairly regular "political" decisions in that same vein. Scalia in particular makes most of his decisions based on his personal animus. It would be a total crap shoot to take the case there. Literally *anything* could happen and you can be sure it won't have much to do with the actual law on the subject.
How is it corrupt? Because it doesn't have enough liberal ls? ---
Are you fracking for real buddy, Georgie boy the moron prince loaded the place with right wing POS? IF anything, the Supreme court is teaming right wing ideologues forging the law as they see fit.
Are you going to defend Citizen United, a decision thaty undoubtably one of the worse ever and will have to be overturned eventually or the even more stupid Hobby lobby crap which makes no sense no matter how often you read the decision (and has been commented ad nauseum with utter disbelief by the legal community) and will have many long term collateral damages.
W added Alito and Roberts. Hardly stacking the court. In fact the court is evenly split. The "corrupt" court also legalized Obamacare. So I see you have a point.
Where a design patent includes unprotected non-ornamental features, should a district court be required to limit that patent to its protected ornamental scope?
is a slippery slope. Think back to the Ferrari case I outlined above. Had the above argument been allowed to dictate interpretation of a patentable design, there is no way Ferrari could have won. Anyone could create a vehicle body that exactly duplicates a Ferrari, then argue in court that each aspect of the design, on its own, is not protectable. A curving hood line, arched wheel wells, the specific angle of the windshield. They would be able to easily argue away the entire design by breaking it into its constituent attributes, none of which on their own are, or should be, protectable.
The result would be a world in which nothing is protectable. Even the Mona Lisa is just a series of unprotectable brush strokes. Samsung's arguments are absurd. The protection a trademark, and associated design patent was created to provide protection against confusion in the public's mind between offerings from competing entities. Protection from confusion goes to the entity that originated the design, in its entirety and not to be atomized.
2. Where a design patent is applied to only a component of a product, should an award of infringer's profits be limited to those profits attributable to the component?
My view on this is that there are components that are more influential to a consumer's purchase decision and there are components that are less influential to the purchase decision. Apple was not awarded Samsung's entire revenue associated with the products that infringed, so presumably the court made some judgement regarding the value of each infringing portion with regard to the entire revenue generated by each handset. I also believe a plaintive should have the right to demand removal from the market a product that contains infringing components or aspects that substantially influence consumers' purchase decisions based upon infringing. This is the law providing penalty sufficient to dissuade illegal behavior.
2. Where a design patent is applied to only a component of a product, should an award of infringer's profits be limited to those profits attributable to the component?
My view on this is that there are components that are more influential to a consumer's purchase decision and there are components that are less influential to the purchase decision. Apple was not awarded Samsung's entire revenue associated with the products that infringed, so presumably the court made some judgement regarding the value of each infringing portion with regard to the entire revenue generated by each handset. I also believe a plaintive should have the right to demand removal from the market a product that contains infringing components or aspects that substantially influence consumers' purchase decisions based upon infringing. This is the law providing penalty sufficient to dissuade illegal behavior.
If you read the Fed Court decision they talk specifically about that. Yes Samsung's entire profit from US sales of the infringing devices was awarded to Apple on the design patent infringement. The court said their hands were tied and there was no wiggle room in the law as they saw it. 100% or nothing with no other option in between. You may want to revisit the second argument in light of that.
2. Where a design patent is applied to only a component of a product, should an award of infringer's profits be limited to those profits attributable to the component?
My view on this is that there are components that are more influential to a consumer's purchase decision and there are components that are less influential to the purchase decision. Apple was not awarded Samsung's entire revenue associated with the products that infringed, so presumably the court made some judgement regarding the value of each infringing portion with regard to the entire revenue generated by each handset. I also believe a plaintive should have the right to demand removal from the market a product that contains infringing components or aspects that substantially influence consumers' purchase decisions based upon infringing. This is the law providing penalty sufficient to dissuade illegal behavior.
If you read the Fed Court decision they talk specifically about that. Yes Samsung's entire profit from US sales of the infringing devices was awarded to Apple on the design patent infringement. The court said their hands were tied and there was no wiggle room in the law as they saw it. 100% or nothing with no other option in between. You may want to revisit the second argument in light of that.
It seems we're in agreement. But it also seems there was substantial confusion in the minds of consumers; even Samsung's own lawyer couldn't tell the Samsung tablet from the iPad. So regardless of the limitation in the law, in this case it might be that 100% was appropriate. I recall the 60+ page document where Samsung had its team detail every detail of the iPhone interface, fully intending to duplicate every aspect, which they then did. They're lucky they didn't get whacked with willful infringement.
2. Where a design patent is applied to only a component of a product, should an award of infringer's profits be limited to those profits attributable to the component?
My view on this is that there are components that are more influential to a consumer's purchase decision and there are components that are less influential to the purchase decision. Apple was not awarded Samsung's entire revenue associated with the products that infringed, so presumably the court made some judgement regarding the value of each infringing portion with regard to the entire revenue generated by each handset. I also believe a plaintive should have the right to demand removal from the market a product that contains infringing components or aspects that substantially influence consumers' purchase decisions based upon infringing. This is the law providing penalty sufficient to dissuade illegal behavior.
If you read the Fed Court decision they talk specifically about that. Yes Samsung's entire profit from US sales of the infringing devices was awarded to Apple on the design patent infringement. The court said their hands were tied and there was no wiggle room in the law as they saw it. 100% or nothing with no other option in between. You may want to revisit the second argument in light of that.
It seems we're in agreement. But it also seems there was substantial confusion in the minds of consumers; even Samsung's own lawyer couldn't tell the Samsung tablet from the iPad. So regardless of the limitation in the law, in this case it might be that 100% was appropriate. I recall the 60+ page document where Samsung had its team detail every detail of the iPhone interface, fully intending to duplicate every aspect, which they then did. They're lucky they didn't get whacked with willful infringement.
Can't say that I necessarily disagree that Samsung got what they deserved. In fact I would not be opposed to Apple getting more than they did in all fairness. BUT....
If SCOTUS doesn't accept the appeal it results in the Federal Court decision being precedent-setting. Future design patent infringers will be required to pay 100% of the profits derived on a handset, tablet or whatever for something as simple as using a protected icon whether by intent or accident. It won't matter. Even worse a company could surrender their entire product profit and still be sued by yet other company for some other design patent and pay out that same amount again. For even a huge company like Apple or Google it could potentially destroy them if only found to infringe just 2 or 3 design patents. A handset might use hundreds of design elements between the interface and shell, any one of which might be claimed in some design patent somewhere.
Wait for an NPE to acquire one to use against Apple and others (and one will if SCOTUS doesn't weigh in on the side of limits) and comment again on how fair the interpretation of the law is in your opinion. With the billions in profits the techs are pocketing they'll be in every patent trolls crosshairs. Just one win could turn one of them into the planet's richest company. 100% disgorgement for using one infringing icon out of hundreds will hardly be seen as fair IMHO.
EDIT: This Amicus Brief filed with the Federal Court in support of Samsung's position in this specific case explains it better than I could. Thanks to @anantksundaram and his mention of FossPatents I see that three law professors who previously sided with Apple in other matters support Samsung in this one. They could hardly be considered anti-Apple. https://docs.google.com/file/d/0B8xYsG-VkgXNXzdDSF9RNS04cFE/edit?pli=1
Comments
As for page 26, infringement of intellectual property rights--especially willful infringement--deserves severe punishment and penalties. I don't understand why Samsung would risk the Supremes deciding that their infringement was willful, which it appears to have been. (And in the unlikely event that they take up the case, the Supremes won't be chumps like the jury was.) Willful infringement can incur a punative fine that is triple the actual damages, with no option to appeal beyond this level. It's like Samsung is willing to cut off its own head to spite its face.
Even the New York Times -- which is far from partial to Apple -- agrees (sort of).
"At this stage, it's not about who's right or wrong. It's only about whether the legal questions raised merit Supreme Court review, which has legal as well as economic implications.
If the Supreme Court denied certiorari, the Federal Circuit ruling would be the last word on the issue, and as a result, design patents would be stronger than they should be and give their holders leverage beyond their reasonable value. A patent troll might acquire a design patent and sue a company like Google or Facebook--or Apple--for 100% of its profits. Worse still, and as Samsung's petition explains: the next patentee with a different design patent that is also a tiny part of a product could ask for the same. And so could potentially thousands of design patent holders, driving even the healthiest company into bankruptcy in such a scenario. If this here wasn't an issue of major importance to the U.S. economy, what would be?"
My take on this is that it is an opportunity to promote reforms of the PTO, which is woefully behind the times.
radarthekat try this link for the Scribd PDF:
http://www.fosspatents.com/
Its the top story and you can click the little "download" button which is the first button to the right of "Scribd." at the bottom of the document and article. Opens right up in Safari on my iPad for nice and easy reading. Hope that is helpful.
Are you fracking for real buddy, Georgie boy the moron prince loaded the place with right wing POS? IF anything, the Supreme court is teaming right wing ideologues forging the law as they see fit.
Are you going to defend Citizen United, a decision thaty undoubtably one of the worse ever and will have to be overturned eventually or the even more stupid Hobby lobby crap which makes no sense no matter how often you read the decision (and has been commented ad nauseum with utter disbelief by the legal community) and will have many long term collateral damages.
Are you an IP lawyer? My brother is. I'll have to see what he thinks. I don't think you're correct about the potential damages to Apple, either on face or what it means precedent-wise.
is a slippery slope. Think back to the Ferrari case I outlined above. Had the above argument been allowed to dictate interpretation of a patentable design, there is no way Ferrari could have won. Anyone could create a vehicle body that exactly duplicates a Ferrari, then argue in court that each aspect of the design, on its own, is not protectable. A curving hood line, arched wheel wells, the specific angle of the windshield. They would be able to easily argue away the entire design by breaking it into its constituent attributes, none of which on their own are, or should be, protectable.Where a design patent includes unprotected non-ornamental features, should a district court be required to limit that patent to its protected ornamental scope?
The result would be a world in which nothing is protectable. Even the Mona Lisa is just a series of unprotectable brush strokes. Samsung's arguments are absurd. The protection a trademark, and associated design patent was created to provide protection against confusion in the public's mind between offerings from competing entities. Protection from confusion goes to the entity that originated the design, in its entirety and not to be atomized.
2. Where a design patent is applied to only a component of a product, should an award of infringer's profits be limited to those profits attributable to the component?
My view on this is that there are components that are more influential to a consumer's purchase decision and there are components that are less influential to the purchase decision. Apple was not awarded Samsung's entire revenue associated with the products that infringed, so presumably the court made some judgement regarding the value of each infringing portion with regard to the entire revenue generated by each handset. I also believe a plaintive should have the right to demand removal from the market a product that contains infringing components or aspects that substantially influence consumers' purchase decisions based upon infringing. This is the law providing penalty sufficient to dissuade illegal behavior.
If SCOTUS doesn't accept the appeal it results in the Federal Court decision being precedent-setting. Future design patent infringers will be required to pay 100% of the profits derived on a handset, tablet or whatever for something as simple as using a protected icon whether by intent or accident. It won't matter. Even worse a company could surrender their entire product profit and still be sued by yet other company for some other design patent and pay out that same amount again. For even a huge company like Apple or Google it could potentially destroy them if only found to infringe just 2 or 3 design patents. A handset might use hundreds of design elements between the interface and shell, any one of which might be claimed in some design patent somewhere.
Wait for an NPE to acquire one to use against Apple and others (and one will if SCOTUS doesn't weigh in on the side of limits) and comment again on how fair the interpretation of the law is in your opinion. With the billions in profits the techs are pocketing they'll be in every patent trolls crosshairs. Just one win could turn one of them into the planet's richest company. 100% disgorgement for using one infringing icon out of hundreds will hardly be seen as fair IMHO.
EDIT: This Amicus Brief filed with the Federal Court in support of Samsung's position in this specific case explains it better than I could. Thanks to @anantksundaram and his mention of FossPatents I see that three law professors who previously sided with Apple in other matters support Samsung in this one. They could hardly be considered anti-Apple.
https://docs.google.com/file/d/0B8xYsG-VkgXNXzdDSF9RNS04cFE/edit?pli=1