Supreme Court to hear Apple v. Samsung appeal on Oct. 11

AppleInsider

The U.S. Supreme Court released a schedule of its upcoming October term sessions on Wednesday, announcing it will hear Samsung's appeal of a contentious patent lawsuit involving Apple on Oct. 11.

America's highest court said in March that it would offer an opinion on Apple's court win over Samsung, but had not blocked off an official hearing date until today.

The Supreme Court will discuss whether penalties assessed in a California federal court case over infringement of iPhone design patents, for which Samsung paid out $548 million in December, were excessive. In its petition to the court last year, Samsung asserted damages in patent cases pertaining to complex devices like smartphones should be based on patented components, not total profits from device sales.

In particular, the court has been petitioned to hear two questions. The first relates to design patent scope, while another asks whether patent trial damages should be assessed based on profits attributable to an infringing component or as a measure of total profits.

Apple maintains its case against Samsung is "legally unexceptional" and is therefore undeserving of review by the Supreme Court.

Depending on the outcome and ensuing Supreme Court opinion, Samsung expects to be reimbursed for its $548 million payment, a contingency afforded by terms included in the initial payout last year.

EsquireCats

This case being picked up at all is a demonstration of money buying power and influence.

Apple is *regularly* found against to the tune of hundreds of millions of dollars for obscure patent infringements, meanwhile Samsung are petitioning the supreme court to validate it's business model of copying - literally reducing any incentive to innovate at all.

We have already seen Apple change their iPhone strategy by becoming less reliant on simple patent protected ideas and instead to difficult and expensive to reproduce hardware and service offerings. (E.g. Apple Music, Apple Pay, 3D touch, finger print sensor etc.)

slprescott

Supreme Court + EU tax probe = interesting October for Apple!

rob53

I also find it interesting that so many businesses are accepting endorsements and advertising dollars from Samsung. I have to wonder where they are getting all that money, it sure isn't from the (lack of) profit from smartphones. Costco sells Samsung TVs almost exclusively along with a variety of other Samsung products. Yes there are a few Apple products but they all fit on one table (plus the AppleTV in 1-ft of shelf space). I guess people assume Samsung is an American company and they are buying American.

metrix

Totally disgusted with this Samsung, no ethics whatsoever. A government sponsored monopoly that looks the other way for all things that are almost criminal.

fred1

I hope Ginsberg is one of the justices on this case. She's neat!

radarthekat

Time to drag out a piece I wrote a few years back, before we hear from the anti-design-patent crowd.

Since the Apple vs Samsung trial there has been much written about the merit of design patents.  I thought I'd provide a bit of insight here for those who might not be conversant in the topic.

Among Apple's assertions in its lawsuit was that Samsung copied elements of the iPhone and iPad for which Apple holds several patents.  These particular patents are known as design patents.  It seems a lot of folks don't take these patents seriously and go as far as to suggest that they should not exist.  There is a good reason why they do exist, but to explain this we have to begin with a bit of a side trip and requires that we speak about trademark law.  Bear with me on this and hopefully I'll be able to clarify the purpose of design patents and provide some insights into the Apple versus Samsung trial.

Most people are familiar with the idea of a trademark.  By way of example, Kellogg, the cereal maker, has a trademark on Tony the Tiger and fought a battle with Exxon over Kellogs' claim that the use of an unnamed tiger in Exxon's advertising violates Kellogg's trademark for Tony the Tiger.  Why?  For 30 years, Exxon used its tiger character exclusively to promote its gasoline blend, but then, in the 1990's began using it to sell food. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores.  The case went back and forth for several years, with Exxon initially winning the case, but ultimately losing on appeal.  This case would not seem extraordinary to most people as most folks understand the concept of protecting a unique trademark like Kellogg's Tony the Tiger character.

Now let's look at another case, one that comes closer to the Apple vs Samsung case, but still an application of trademark law.  This case is Ferrari vs Robert's Replicas.  Back in the 1980's Robert's Replica's was in the business of manufacturing fiberglass kits that replicated the exterior features of Ferrari's Daytona Spyder and Testarossa automobiles. Roberts' copies were called the Miami Spyder and the Miami Coupe, respectively.  Ferrari brought suit against Roberts in March 1988 alleging trademark infringement. 

Here's what this case was about:  After Ferrari vehicles have been on the market for a number of years, the design of those vehicles acquires what's called "secondary meaning", a concept at the heart of trademark law.  Secondary meaning refers to an association of a design, like the design of a Ferrari vehicle, with quality and craftsmanship or other positive attributes one might associate with the Ferrari brand.  After a design has acquired secondary meaning, trademark law can be applied to protect the company from those who would copy its designs and use them to promote their own products.  Robert's copying of Ferrari's iconic designs could confuse the public and dilute the strength of Ferrari's brand.  Just the presence of large numbers of replicas would dilute Ferrari's image of exclusivity, causing financial harm to Ferrari.  Trademark law, under the concept of secondary meaning, protected Ferrari.  The courts ruled in favor of Ferrari in this case and enjoined Roberts from producing the Miami Spyder and the Miami Coupe.

But how does this relate to design patent law? 

The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers.  Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.

This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers immediate protection of a new and novel design and for a period of 14 years thereafter, giving a company protection of its original designs until they acquire secondary meaning in the market and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.

radarthekat

Meanwhile, the Supreme Court refused the eBooks case, which has meaningful impact on anti-trust interpretation.  Great job, SCOTUS!  /s

gatorguy

radarthekat said:

Time to drag out a piece I wrote a few years back, before we hear from the anti-design-patent crowd.

Since the Apple vs Samsung trial there has been much written about the merit of design patents.  I thought I'd provide a bit of insight here for those who might not be conversant in the topic.

Among Apple's assertions in its lawsuit was that Samsung copied elements of the iPhone and iPad for which Apple holds several patents.  These particular patents are known as design patents.  It seems a lot of folks don't take these patents seriously and go as far as to suggest that they should not exist.  There is a good reason why they do exist, but to explain this we have to begin with a bit of a side trip and requires that we speak about trademark law.  Bear with me on this and hopefully I'll be able to clarify the purpose of design patents and provide some insights into the Apple versus Samsung trial.

Most people are familiar with the idea of a trademark.  By way of example, Kellogg, the cereal maker, has a trademark on Tony the Tiger and fought a battle with Exxon over Kellogs' claim that the use of an unnamed tiger in Exxon's advertising violates Kellogg's trademark for Tony the Tiger.  Why?  For 30 years, Exxon used its tiger character exclusively to promote its gasoline blend, but then, in the 1990's began using it to sell food. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores.  The case went back and forth for several years, with Exxon initially winning the case, but ultimately losing on appeal.  This case would not seem extraordinary to most people as most folks understand the concept of protecting a unique trademark like Kellogg's Tony the Tiger character.

Now let's look at another case, one that comes closer to the Apple vs Samsung case, but still an application of trademark law.  This case is Ferrari vs Robert's Replicas.  Back in the 1980's Robert's Replica's was in the business of manufacturing fiberglass kits that replicated the exterior features of Ferrari's Daytona Spyder and Testarossa automobiles. Roberts' copies were called the Miami Spyder and the Miami Coupe, respectively.  Ferrari brought suit against Roberts in March 1988 alleging trademark infringement. 

Here's what this case was about:  After Ferrari vehicles have been on the market for a number of years, the design of those vehicles acquires what's called "secondary meaning", a concept at the heart of trademark law.  Secondary meaning refers to an association of a design, like the design of a Ferrari vehicle, with quality and craftsmanship or other positive attributes one might associate with the Ferrari brand.  After a design has acquired secondary meaning, trademark law can be applied to protect the company from those who would copy its designs and use them to promote their own products.  Robert's copying of Ferrari's iconic designs could confuse the public and dilute the strength of Ferrari's brand.  Just the presence of large numbers of replicas would dilute Ferrari's image of exclusivity, causing financial harm to Ferrari.  Trademark law, under the concept of secondary meaning, protected Ferrari.  The courts ruled in favor of Ferrari in this case and enjoined Roberts from producing the Miami Spyder and the Miami Coupe.

But how does this relate to design patent law? 

The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers.  Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.

This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers immediate protection of a new and novel design and for a period of 14 years thereafter, giving a company protection of its original designs until they acquire secondary meaning in the market and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.

Which has zero to do with the SCOTUS appeal AFAIK. 

While you've written a great informative post it's not the point of contention. Instead it's how damages should be awarded for design patent infringement. No one argued against design patents in general. But whereas utility patent damages are computed based on the specifics of the usage and importance in any particular scenario, infringe a design patent and the IP holder is entitled to 100% of the entire profits derived from selling that infringing product, no matter how minimal the use ie a single app icon. Worse the same or another IP owner could take a second bite of the entire profits with more design patent claims and on and on and on. 

Such is the current state of design patent law as it's been determined by the US Court of Appeals. I'd love to know your opinion on this. If you believe it's correctly and properly applied what rationale you are using to argue that design patents should generally be more valuable that utility patents and automatically worthy of a product's entire profits for even the most minimal violation? There is no other damage award available at the moment, only 100%. Seems nonsensical but perhaps you can offer a logical argument for it. 

rob53

The saddest part of this whole thing is that Samsung, and others, got away with blatant copying of Apple products, blowing the doors open in the smartphone field. This is something that Apple can't change. Nobody protected Apple's design when it needed to be protected. If they had, Apple would have owned the market in terms of sales, not the Android phones. We're stuck with a lot of copycat designs. Samsung knows by dragging out the process they have ultimately won anyway, even if they end up having to pay the fine. Our SCOTUS, as well as DOJ and FBI and many members of Congress just hates Apple, I believe because they are jealous of its success. Apple will never get a fair shake from any of them but people will still buy their products because they are the best, no matter what analysts or Apple haters say.

radarthekat

gatorguy said:

radarthekat said:

Time to drag out a piece I wrote a few years back, before we hear from the anti-design-patent crowd.

Since the Apple vs Samsung trial there has been much written about the merit of design patents.  I thought I'd provide a bit of insight here for those who might not be conversant in the topic.

Among Apple's assertions in its lawsuit was that Samsung copied elements of the iPhone and iPad for which Apple holds several patents.  These particular patents are known as design patents.  It seems a lot of folks don't take these patents seriously and go as far as to suggest that they should not exist.  There is a good reason why they do exist, but to explain this we have to begin with a bit of a side trip and requires that we speak about trademark law.  Bear with me on this and hopefully I'll be able to clarify the purpose of design patents and provide some insights into the Apple versus Samsung trial.

Most people are familiar with the idea of a trademark.  By way of example, Kellogg, the cereal maker, has a trademark on Tony the Tiger and fought a battle with Exxon over Kellogs' claim that the use of an unnamed tiger in Exxon's advertising violates Kellogg's trademark for Tony the Tiger.  Why?  For 30 years, Exxon used its tiger character exclusively to promote its gasoline blend, but then, in the 1990's began using it to sell food. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores.  The case went back and forth for several years, with Exxon initially winning the case, but ultimately losing on appeal.  This case would not seem extraordinary to most people as most folks understand the concept of protecting a unique trademark like Kellogg's Tony the Tiger character.

Now let's look at another case, one that comes closer to the Apple vs Samsung case, but still an application of trademark law.  This case is Ferrari vs Robert's Replicas.  Back in the 1980's Robert's Replica's was in the business of manufacturing fiberglass kits that replicated the exterior features of Ferrari's Daytona Spyder and Testarossa automobiles. Roberts' copies were called the Miami Spyder and the Miami Coupe, respectively.  Ferrari brought suit against Roberts in March 1988 alleging trademark infringement. 

Here's what this case was about:  After Ferrari vehicles have been on the market for a number of years, the design of those vehicles acquires what's called "secondary meaning", a concept at the heart of trademark law.  Secondary meaning refers to an association of a design, like the design of a Ferrari vehicle, with quality and craftsmanship or other positive attributes one might associate with the Ferrari brand.  After a design has acquired secondary meaning, trademark law can be applied to protect the company from those who would copy its designs and use them to promote their own products.  Robert's copying of Ferrari's iconic designs could confuse the public and dilute the strength of Ferrari's brand.  Just the presence of large numbers of replicas would dilute Ferrari's image of exclusivity, causing financial harm to Ferrari.  Trademark law, under the concept of secondary meaning, protected Ferrari.  The courts ruled in favor of Ferrari in this case and enjoined Roberts from producing the Miami Spyder and the Miami Coupe.

But how does this relate to design patent law? 

The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers.  Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.

This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers immediate protection of a new and novel design and for a period of 14 years thereafter, giving a company protection of its original designs until they acquire secondary meaning in the market and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.

Which has zero to do with the SCOTUS appeal AFAIK. 

While you've written a great informative post it's not the point of contention. Instead it's how damages should be awarded for design patent infringement. No one argued against design patents in general. But whereas utility patent damages are computed based on the specifics of the usage and importance in any particular scenario, infringe a design patent and the IP holder is entitled to 100% of the entire profits derived from selling that infringing product, no matter how minimal the use ie a single app icon. Worse the same or another IP owner could take a second bite of the entire profits with more design patent claims and on and on and on. 

Such is the current state of design patent law as it's been determined by the US Court of Appeals. I'd love to know your opinion on this. If you believe it's correctly and properly applied what rationale you are using to argue that design patents should generally be more valuable that utility patents and automatically worthy of a product's entire profits for even the most minimal violation? There is no other damage award available at the moment, only 100%. Seems nonsensical but perhaps you can offer a logical argument for it. 

I think that, because a design patent offers protection until a design can attain trademark protection, the penalties and damage awards for infringement should be those long associated with trademark infringement.  Here's a brief on that,

http://www.insidecounsel.com/2015/04/10/the-3-types-of-trademark-damages-claims-an-economi

tmay

gatorguy said:

While you've written a great informative post it's not the point of contention. Instead it's how damages should be awarded for design patent infringement. No one argued against design patents in general. But whereas utility patent damages are computed based on the specifics of the usage and importance in any particular scenario, infringe a design patent and the IP holder is entitled to 100% of the entire profits derived from selling that infringing product, no matter how minimal the use ie a single app icon. Worse the same or another IP owner could take a second bite of the entire profits with more design patent claims and on and on and on. 

Such is the current state of design patent law as it's been determined by the US Court of Appeals. I'd love to know your opinion on this. If you believe it's correctly and properly applied what rationale you are using to argue that design patents should generally be more valuable that utility patents and automatically worthy of a product's entire profits for even the most minimal violation? There is no other damage award available at the moment, only 100%. Seems nonsensical but perhaps you can offer a logical argument for it. 

Except that the jurors in this case already apportioned the amounts of damages; it simply isn't the case that Apple gets 100 % of the entire profits derived from selling the infringing product. Apple only gets those juror assessed damages as defined by those individual infringements.

The Court likely will have a narrow ruling, given that they are down a jurist. I doubt their will be a definitive ruling on assessed damages for design patents.

As a engineer, most products are composed of components ordered from catalogs and assembled into finished products. Apple does this, at a high level of integration with it's software, and with many custom components, and with the advantage of an established Industrial Design team in house for the exterior design.

To the consumer at the time of the first iPhone, the iPhone was a magical black box with an industry leading design. To the industry, the iPhone was a massive disruption that Samsung reacted to by copying Apple design elements.

eightzero

Another incomprehensible patent case opinion coming from Thomas in 3...2...1...

gatorguy

tmay said:

gatorguy said:

While you've written a great informative post it's not the point of contention. Instead it's how damages should be awarded for design patent infringement. No one argued against design patents in general. But whereas utility patent damages are computed based on the specifics of the usage and importance in any particular scenario, infringe a design patent and the IP holder is entitled to 100% of the entire profits derived from selling that infringing product, no matter how minimal the use ie a single app icon. Worse the same or another IP owner could take a second bite of the entire profits with more design patent claims and on and on and on. 

Such is the current state of design patent law as it's been determined by the US Court of Appeals. I'd love to know your opinion on this. If you believe it's correctly and properly applied what rationale you are using to argue that design patents should generally be more valuable that utility patents and automatically worthy of a product's entire profits for even the most minimal violation? There is no other damage award available at the moment, only 100%. Seems nonsensical but perhaps you can offer a logical argument for it. 

Except that the jurors in this case already apportioned the amounts of damages; it simply isn't the case that Apple gets 100 % of the entire profits derived from selling the infringing product. Apple only gets those juror assessed damages as defined by those individual infringements.

The Court likely will have a narrow ruling, given that they are down a jurist. I doubt their will be a definitive ruling on assessed damages for design patents.

As a engineer, most products are composed of components ordered from catalogs and assembled into finished products. Apple does this, at a high level of integration with it's software, and with many custom components, and with the advantage of an established Industrial Design team in house for the exterior design.

To the consumer at the time of the first iPhone, the iPhone was a magical black box with an industry leading design. To the industry, the iPhone was a massive disruption that Samsung reacted to by copying Apple design elements.

Wrong. You've confused this with the utility patent damages also awarded in the case.

On the design patent infringement damages Apple is currently awarded 100% of the US profits from sales of those infringing devices. According to current interpretation of the law there is no other choice, it cannot be anything other than 100%. This is a percentage neither the jury nor the judge can change as there is no such thing as apportionment on design patent infringement damages if the Appeals Court ruling stands. 

I would be shocked if even Apple wishes for this to be the law of the land, as there is almost certainly a patent troll with one or more design patents in hand salivating for the chance to possibly bankrupt Apple and seize their 10's of billions in US profits with the right winning lawsuit.  Note that foreign-derived profits would be safe from seizure which is another good reason for most profits to remain safely stashed "overseas"... 
in New York banks. 

  

gatorguy

radarthekat said:

gatorguy said:

radarthekat said:

Time to drag out a piece I wrote a few years back, before we hear from the anti-design-patent crowd.

Since the Apple vs Samsung trial there has been much written about the merit of design patents.  I thought I'd provide a bit of insight here for those who might not be conversant in the topic.

Among Apple's assertions in its lawsuit was that Samsung copied elements of the iPhone and iPad for which Apple holds several patents.  These particular patents are known as design patents.  It seems a lot of folks don't take these patents seriously and go as far as to suggest that they should not exist.  There is a good reason why they do exist, but to explain this we have to begin with a bit of a side trip and requires that we speak about trademark law.  Bear with me on this and hopefully I'll be able to clarify the purpose of design patents and provide some insights into the Apple versus Samsung trial.

Most people are familiar with the idea of a trademark.  By way of example, Kellogg, the cereal maker, has a trademark on Tony the Tiger and fought a battle with Exxon over Kellogs' claim that the use of an unnamed tiger in Exxon's advertising violates Kellogg's trademark for Tony the Tiger.  Why?  For 30 years, Exxon used its tiger character exclusively to promote its gasoline blend, but then, in the 1990's began using it to sell food. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores.  The case went back and forth for several years, with Exxon initially winning the case, but ultimately losing on appeal.  This case would not seem extraordinary to most people as most folks understand the concept of protecting a unique trademark like Kellogg's Tony the Tiger character.

Now let's look at another case, one that comes closer to the Apple vs Samsung case, but still an application of trademark law.  This case is Ferrari vs Robert's Replicas.  Back in the 1980's Robert's Replica's was in the business of manufacturing fiberglass kits that replicated the exterior features of Ferrari's Daytona Spyder and Testarossa automobiles. Roberts' copies were called the Miami Spyder and the Miami Coupe, respectively.  Ferrari brought suit against Roberts in March 1988 alleging trademark infringement. 

Here's what this case was about:  After Ferrari vehicles have been on the market for a number of years, the design of those vehicles acquires what's called "secondary meaning", a concept at the heart of trademark law.  Secondary meaning refers to an association of a design, like the design of a Ferrari vehicle, with quality and craftsmanship or other positive attributes one might associate with the Ferrari brand.  After a design has acquired secondary meaning, trademark law can be applied to protect the company from those who would copy its designs and use them to promote their own products.  Robert's copying of Ferrari's iconic designs could confuse the public and dilute the strength of Ferrari's brand.  Just the presence of large numbers of replicas would dilute Ferrari's image of exclusivity, causing financial harm to Ferrari.  Trademark law, under the concept of secondary meaning, protected Ferrari.  The courts ruled in favor of Ferrari in this case and enjoined Roberts from producing the Miami Spyder and the Miami Coupe.

But how does this relate to design patent law? 

The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers.  Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.

This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers immediate protection of a new and novel design and for a period of 14 years thereafter, giving a company protection of its original designs until they acquire secondary meaning in the market and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.

Which has zero to do with the SCOTUS appeal AFAIK. 

While you've written a great informative post it's not the point of contention. Instead it's how damages should be awarded for design patent infringement. No one argued against design patents in general. But whereas utility patent damages are computed based on the specifics of the usage and importance in any particular scenario, infringe a design patent and the IP holder is entitled to 100% of the entire profits derived from selling that infringing product, no matter how minimal the use ie a single app icon. Worse the same or another IP owner could take a second bite of the entire profits with more design patent claims and on and on and on. 

Such is the current state of design patent law as it's been determined by the US Court of Appeals. I'd love to know your opinion on this. If you believe it's correctly and properly applied what rationale you are using to argue that design patents should generally be more valuable that utility patents and automatically worthy of a product's entire profits for even the most minimal violation? There is no other damage award available at the moment, only 100%. Seems nonsensical but perhaps you can offer a logical argument for it. 

I think that, because a design patent offers protection until a design can attain trademark protection, the penalties and damage awards for infringement should be those long associated with trademark infringement.  Here's a brief on that,

http://www.insidecounsel.com/2015/04/10/the-3-types-of-trademark-damages-claims-an-economi

The immediate flaw in your reasoning is that getting design patent protection does not mean the owner has any interest in a trademark. Those serve a different purpose than design patents. Secondly does trademark law provide for 100% of the infringer's device profits with no other option? I don't believe so sir. Apportionment by a judge/jury is a consideration, unlike design patents where there is no wiggle room. 

In any event then you sound as tho you believe it's the proper damages basis, 100% of the profits no matter how infinitesimal the IP is in the overall product, and contrary to apportioned damages as applied to utility patents (and trademarks). Am I reading your opinion correctly? 

radarthekat

gatorguy said:

radarthekat said:

I think that, because a design patent offers protection until a design can attain trademark protection, the penalties and damage awards for infringement should be those long associated with trademark infringement.  Here's a brief on that,

http://www.insidecounsel.com/2015/04/10/the-3-types-of-trademark-damages-claims-an-economi

The immediate flaw in your reasoning is that getting design patent protection does not mean the owner has any interest in a trademark. Those serve a different purpose than design patents. Secondly does trademark law provide for 100% of the infringer's device profits with no other option? I don't believe so sir. Apportionment by a judge/jury is a consideration, unlike design patents where there is no wiggle room. 

In any event then you sound as tho you believe it's the proper damages basis, 100% of the profits no matter how infinitesimal the IP is in the overall product, and contrary to apportioned damages as applied to utility patents (and trademarks). Am I reading your opinion correctly? 

You're not reading me correctly.  My first post makes the connection between design patents and trademark law, illustrating the entire purpose of a design patent.  Then I was asked about the damage awards allowed for design patents, and my response was that they SHOULD (important word here that indicates my opinion, not the current status) be the same as for trademark infringement, which in addition to allowing for 100% of the profits, also allows two other economic damage determinations/calculations. For all I know, all three damage assessment methods are available for design patent damages.  But regardless, it's my opinion they should be.  All three are described in the link I included in my most recent response.

gatorguy

radarthekat said:

gatorguy said:

radarthekat said:

I think that, because a design patent offers protection until a design can attain trademark protection, the penalties and damage awards for infringement should be those long associated with trademark infringement.  Here's a brief on that,

http://www.insidecounsel.com/2015/04/10/the-3-types-of-trademark-damages-claims-an-economi

The immediate flaw in your reasoning is that getting design patent protection does not mean the owner has any interest in a trademark. Those serve a different purpose than design patents. Secondly does trademark law provide for 100% of the infringer's device profits with no other option? I don't believe so sir. Apportionment by a judge/jury is a consideration, unlike design patents where there is no wiggle room. 

In any event then you sound as tho you believe it's the proper damages basis, 100% of the profits no matter how infinitesimal the IP is in the overall product, and contrary to apportioned damages as applied to utility patents (and trademarks). Am I reading your opinion correctly? 

You're not reading me correctly.  My first post makes the connection between design patents and trademark law, illustrating the entire purpose of a design patent.  Then I was asked about the damage awards allowed for design patents, and my response was that they SHOULD (important word here that indicates my opinion, not the current status) be the same as for trademark infringement, which in addition to allowing for 100% of the profits, also allows two other economic damage determinations/calculations. For all I know, all three damage assessment methods are available for design patent damages.  But regardless, it's my opinion they should be.  All three are described in the link I included in my most recent response.

Allowing for 100% of the profits with the option for less (apportionment) and mandating that 100% is the only cure with no apportionment option are different beasts, which is why this is being heard by SCOTUS. Trademark law permits the first while current interpretation of design patent law mandates only the latter. Why should the penalties applicable to design be more egregious than violating trademarks or utility patents? That's the question that SCOTUS will answer.

Design patent infringement is a potential doomsday scenario as it now stands, even for a company the size and wealth of Apple. 

FWIW I suspect SCOTUS may feel their hands are tied by the law as written and kick this back to the Congress for a necessary fix to bring it in line with other US intellectual property rights.

radarthekat

gatorguy said:

radarthekat said:

You're not reading me correctly.  My first post makes the connection between design patents and trademark law, illustrating the entire purpose of a design patent.  Then I was asked about the damage awards allowed for design patents, and my response was that they SHOULD (important word here that indicates my opinion, not the current status) be the same as for trademark infringement, which in addition to allowing for 100% of the profits, also allows two other economic damage determinations/calculations. For all I know, all three damage assessment methods are available for design patent damages.  But regardless, it's my opinion they should be.  All three are described in the link I included in my most recent response.

Allowing for 100% of the profits with the option for less (apportionment) and mandating that 100% is the only cure with no apportionment option are different beasts, which is why this is being heard by SCOTUS. Trademark law permits the first while current interpretation of design patent law mandates only the latter. Why should the penalties applicable to design be more egregious than violating trademarks or utility patents? That's the question that SCOTUS will answer.

Design patent infringement is a potential doomsday scenario as it now stands, even for a company the size and wealth of Apple. 

FWIW I suspect SCOTUS may feel their hands are tied by the law as written and kick this back to the Congress for a necessary fix to bring it in line with other US intellectual property rights.

Think we're in agreement, and have been all along.