Tech firms worry Supreme Court win for Apple over Samsung could benefit patent trolls

Posted:
in General Discussion
If the Supreme Court sides with Apple and upholds a 120 year-old law governing design patents, it may open the door to a highly lucrative field for patent trolls to exploit, intellectual property experts from the likes of Google and Facebook fear.




In a June 8 amicus brief filed by more than a dozen tech firms, industry experts said they are worried that an Apple win could embolden patent trolls to abuse any precedent that may be set. Much of the concern revolves around design patents, rather than the utility patents more commonly favored by patent trolls, according to Law360.

As the computer industry has matured, utility patents -- those involving "useful process, machine, manufacture, or composition of matter, or a new and useful improvement" --?have become increasingly difficult to obtain. In contrast, design patents, which are "issued for a new, original, and ornamental design embodied in or applied to an article of manufacture," are still a relatively open field.

Adding to the appeal of design patents is the way damages are awarded in design patent cases. In their last round at the appeals court level, the court upheld a judgment awarding Apple all of Samsung's profits derived from the infringing phones.

This all-or-nothing approach is based on precedent set 120 years ago, which is the last time the Supreme Court considered such a case according to Reuters.

Samsung and its supporters are arguing that such an old law does not reflect the realities of modern devices that may have hundreds of parts, some of which are covered under a variety of patents, and that the law should be reinterpreted to award damages proportionally to the patent in question, according to Law360.




If Apple wins at the Supreme Court, and the total profits provision is upheld, experts worry that patent trolls will come out of the woodwork armed with design patents.

"It is not hard to imagine abuse of something like this by a patent troll if they can get their hands on a design patent," said Matt Levy, counsel for the Computer & Communications Industry Association.

Still, not all experts are ready to jump on the doom-and-gloom bandwagon. Howard Hogan, a partner at Gibson Dunn, told law360 that he was skeptical of the arguments being made and that the Supreme Court would have to consider the wisdom of overturning over a century of jurisprudence that has helped protect companies' intellectual property.

Samsung and Apple are set to plead their cases before the Supreme Court on Oct. 11. The dispute dates back to 2012, when Samsung was found on the hook for $1.08 billion in damages for Samsung's infringement on Apple's smartphone hardware and software patents.

In preparation for the October hearing, Apple delivered a legal brief to the court last week, asking it to uphold the favorable ruling in its ongoing patent lawsuit with Samsung. Apple has argued that the South Korean electronics maker has not furnished sufficient evidence to send the case back to a lower court.
«1

Comments

  • Reply 1 of 37
    calicali Posts: 3,495member
    Tech firms fear they can no longer copy Apple or other engineers.

    On the other hand if copying is made legal we'll be China within a decade.
    mwhitelmagooh2pSpamSandwichjay-tjahblademagman1979brakkenmdriftmeyerredgeminipa
  • Reply 2 of 37
    sricesrice Posts: 113member
    Samsung should step up to the plate .. settle with Apple by paying the judgement and not letting the Supreme Court rule.
    Thieves should have to pay: http://samsungcopiesapple.tumblr.com

    mwhitelmagoojay-tradarthekatbrakkenredgeminipajony0
  • Reply 3 of 37
    ceek74ceek74 Posts: 320member
    Unfortunately, it will take many more troll and "prior art" cases before the patent system itself is revamped.  But just think, if/when the patent system is revised, all those tech ambulance chasers that'll be out of a job.
    mwhite
  • Reply 4 of 37
    gatorguygatorguy Posts: 19,319member
    cali said:
    Tech firms fear they can no longer copy Apple or other engineers.
    It's not the "engineers". It's the designers, and not because anyone believes there should be no design patents nor penalties for infringing on one. This is about the unequal and out-sized penalties for doing so as compared to infringing on say an A9 processor utility patent. 
    cnocbui
  • Reply 5 of 37
    "If the Supreme Court sides with Apple and upholds a 120 year-old law governing design patents, it may open the door to a highly lucrative field for patent trolls to exploit" Patent trolls use non-valid patents to sue other companies. How is Apple defending its valid patents and other forms of intellectual property encouraging patent trolls in any way??? That doesn't make any sense.
    ronnteejay2012mwhiteSpamSandwichjay-tbrakkenjony0
  • Reply 6 of 37
    metrixmetrix Posts: 227member
    I know I only have a basic understanding of this but it sounds similar to when Harley Davidson came out with their Revolution bike, clearly this was a new approach and allowing a company to ripoff the design seems wrong! If you are just a company that copies someone else and you don't come out with your own ideas you steal the development profit from other companies and put them out of business and you eventually have no companies left except those like yourself.
  • Reply 7 of 37
    gatorguy said:
    cali said:
    Tech firms fear they can no longer copy Apple or other engineers.
    It's not the "engineers". It's the designers, and not because anyone believes there should be no design patents nor penalties for infringing on one. This is about the unequal and out-sized penalties for doing so as compared to infringing on say an A9 processor utility patent. 
    If another company causes Apple to lose $1 Billion worth of iPhone sales because it copied the A9 processor, how is that any different than if another company causes Apple to lose $1 Billion worth of iPhone sales because it copied the design of the iPhone 6S? Why should the compensation to Apple be any different in both cases?
    tmayteejay2012macseekermwhitemanfred zornfotoformatjay-tration albrakken
  • Reply 8 of 37
    "intellectual property experts from the likes of Google"

    That's like saying "fiduciary responsibility experts from the likes of Congress"
    mwhitelmagoojay-tJanNL
  • Reply 9 of 37
    It looks like Samsung copied the general appearance of the iPhone, which, at the time, meant a major shift in paradigm, and this applies to the entire iPhone, or at least a large proportion of it.
    It is unlikely that such major shifts in paradigm will happen frequently. Smaller aspects of a new design still need to be recognized and rewarded properly.
    The key thing is: how large is the fraction of the total value that is affected by a design change.
    It all boils down to determining a proportionality factor for each design patent, i.e., how much of the total value of the entire device can be derived from the new design? (iow: how much is the company owning the patent able to charge more than for a model that doesn't sport the new design?)

  • Reply 10 of 37
    tmaytmay Posts: 3,208member
    gatorguy said:
    cali said:
    Tech firms fear they can no longer copy Apple or other engineers.
    It's not the "engineers". It's the designers, and not because anyone believes there should be no design patents nor penalties for infringing on one. This is about the unequal and out-sized penalties for doing so as compared to infringing on say an A9 processor utility patent. 
    In a market where the key to survival is differentiation, you might be surprised to find that great design is in fact the key for winning customers, and Apple is in fact the acknowledged disruption in the nascent smartphone market with their prototypical iPhone. You seem to believe that consumer devices are purchased off of a checklist or a BOM, and that's what the industry wants the Court to believe, but people primarily choose based on ease of use and design of the product, once the product has met minimal technical requirements.

    That Apple had the skills and expertise to synergistically design the hardware, operating system, Ui, applications, development system and practically everything else involved in the iPhone, package it in an industrial design that still speaks to the original iPhone after near 10 years, is one of the factors that continues to drive iPhone sales.
    fotoformatration aljony0
  • Reply 11 of 37
    gatorguygatorguy Posts: 19,319member
    tmay said:
    gatorguy said:
    cali said:
    Tech firms fear they can no longer copy Apple or other engineers.
    It's not the "engineers". It's the designers, and not because anyone believes there should be no design patents nor penalties for infringing on one. This is about the unequal and out-sized penalties for doing so as compared to infringing on say an A9 processor utility patent. 
    In a market where the key to survival is differentiation, you might be surprised to find that great design is in fact the key for winning customers, and Apple is in fact the acknowledged disruption in the nascent smartphone market with their prototypical iPhone. You seem to believe that consumer devices are purchased off of a checklist or a BOM, and that's what the industry wants the Court to believe...
    Nope. I feel that a run-of-the-mill infringed design patent should not by law have as the ONLY cure a 100% disgorgement of all profits derived from the sales of that product, regardless of how "differentiating" it is. You seem to arguing that any design patent no matter how insignificant should inherently be more valuable than functional elements protected by utility patents. Is that what you think and if so explain the rationale behind it. 
    edited August 2016
  • Reply 12 of 37
    SpamSandwichSpamSandwich Posts: 30,116member
    jurassic said:
    "If the Supreme Court sides with Apple and upholds a 120 year-old law governing design patents, it may open the door to a highly lucrative field for patent trolls to exploit" Patent trolls use non-valid patents to sue other companies. How is Apple defending its valid patents and other forms of intellectual property encouraging patent trolls in any way??? That doesn't make any sense.
    The logic is more twisted than a rope made of other ropes.
  • Reply 13 of 37
    adrayvenadrayven Posts: 460member
    The issue is, a design patent has NO weight in court if you have NO PRODUCT. Which is why patent trolls have NEVER used design patents in cases..

    This is a red-haring argument that they blatantly ignore the whole 'you need a physical product to directly associate with' issue that design patents require.. In-fact, design patent cases never win even if you've a 'demo' product unless you've RELEASED a true product to market. Design patents rely strictly on public association with a design to a company's recognition and name.

    No product in the market or no functioning company with a known name, design patent is completely useless.

    Patent trolls by definition have no products.. sooooo... umm.. huh?
    edited August 2016 ration alradarthekatsrice
  • Reply 14 of 37
    NemWanNemWan Posts: 109member
    How does NOT changing an old law open a new door?
    ration alJanNL
  • Reply 15 of 37
    tmaytmay Posts: 3,208member
    gatorguy said:
    tmay said:
    In a market where the key to survival is differentiation, you might be surprised to find that great design is in fact the key for winning customers, and Apple is in fact the acknowledged disruption in the nascent smartphone market with their prototypical iPhone. You seem to believe that consumer devices are purchased off of a checklist or a BOM, and that's what the industry wants the Court to believe, but people primarily choose based on ease of use and design of the product, once the product has met minimal technical requirements.

    That Apple had the skills and expertise to synergistically design the hardware, operating system, Ui, applications, development system and practically everything else involved in the iPhone, package it in an industrial design that still speaks to the original iPhone after near 10 years, is one of the factors that continues to drive iPhone sales.
    Nope. I feel that a run-of-the-mill infringed design patent should not by law have as the ONLY cure a 100% disgorgement of all profits derived from the sales of that product, regardless of how "differentiating" it is. You seem to arguing that any design patent no matter how insignificant should inherently be more valuable than functional elements protected by utility patents. Is that what you think and if so explain the rationale behind it. 
    Nah, I'm not going to waste my time arguing. I acknowledge that the legal system is ill prepared to deal with the few disruptive products that arrive in our lives.
    Habi_tweet
  • Reply 16 of 37
    gatorguygatorguy Posts: 19,319member
    tmay said:
    gatorguy said:
    tmay said:
    In a market where the key to survival is differentiation, you might be surprised to find that great design is in fact the key for winning customers, and Apple is in fact the acknowledged disruption in the nascent smartphone market with their prototypical iPhone. You seem to believe that consumer devices are purchased off of a checklist or a BOM, and that's what the industry wants the Court to believe, but people primarily choose based on ease of use and design of the product, once the product has met minimal technical requirements.

    That Apple had the skills and expertise to synergistically design the hardware, operating system, Ui, applications, development system and practically everything else involved in the iPhone, package it in an industrial design that still speaks to the original iPhone after near 10 years, is one of the factors that continues to drive iPhone sales.
    Nope. I feel that a run-of-the-mill infringed design patent should not by law have as the ONLY cure a 100% disgorgement of all profits derived from the sales of that product, regardless of how "differentiating" it is. You seem to arguing that any design patent no matter how insignificant should inherently be more valuable than functional elements protected by utility patents. Is that what you think and if so explain the rationale behind it. 
    Nah, I'm not going to waste my time arguing. I acknowledge that the legal system is ill prepared to deal with the few disruptive products that arrive in our lives.
    I suspect the reason is that you actually agree with me 100%. I'm basing that on previous comments you've made on IP issues.

    This isn't about whether Samsung "copied" iPhone design (they did) or if Samsung deserves to pay a heavy cost (they do) but whether ANY and EVERY US design patent infringement by ANY company has as it's it's one and only monetary cure 100% of a products profits, no other option. 
    edited August 2016 loquitur
  • Reply 17 of 37
    Unsurprisingly the "industry" is a cohort of businesses that have been making quite a bit of money by closely mimicking Apple designs.

    Their logic at this stage seems to be 'we can manufacture too, so we should share in the bounty of their innovation'.

    Technology is going to provide a constant headache to the patent office - reform is needed so actual innovators are protected, or that a lawsuit can handle more than a handful of patents. 
    ration al
  • Reply 18 of 37
    gatorguygatorguy Posts: 19,319member
    adrayven said:
    The issue is, a design patent has NO weight in court if you have NO PRODUCT. Which is why patent trolls have NEVER used design patents in cases..

    This is a red-haring argument that they blatantly ignore the whole 'you need a physical product to directly associate with' issue that design patents require.. In-fact, design patent cases never win even if you've a 'demo' product unless you've RELEASED a true product to market. Design patents rely strictly on public association with a design to a company's recognition and name.

    No product in the market or no functioning company with a known name, design patent is completely useless.

    Patent trolls by definition have no products.. sooooo... umm.. huh?
    I can certainly understand why you think that, and on the surface it does sound like a logical conclusion. It isn't. There will be patent trolls without intervention by SCOTUS ( and/or Congress) since they don't have to be the original inventor or designer in order to assert their rights. Buying the "property" just as the do with other intellectual property will work. See this:
    http://www.ipnav.com/blog/design-patents-and-the-pretzel-patent-troll/

    If a design patent was issued then a "item of manufacture" existed and the design is protectable. That a PAE is asserting it doesn't matter does it? To that point see this article exposing one way to take advantage of the rules. I don't believe the law requires them to have an actual commercial product in order to protect their rights of ownership does it?
    http://www.insidesources.com/patent-trolls-are-already-abusing-the-apple-v-samsung-ruling/

    So Yes, there will be trolls, particularly when there's a chance to reap $billions on a successful gambit. 

    Here's an silly example of how unreasonable the cure is:
     Microsoft owns a design patent for a graphical representation of an arrow in a box in software. If another company, in this case Corel, uses an arrow in a box icon in a software suite they may be infringing on MS intellectual property and if so would be automatically awarded every penny of profit Corel gained from their software product. That's the facts, not a red herring.
    edited August 2016 singularity
  • Reply 19 of 37
    gatorguygatorguy Posts: 19,319member
    jurassic said:
    "If the Supreme Court sides with Apple and upholds a 120 year-old law governing design patents, it may open the door to a highly lucrative field for patent trolls to exploit" Patent trolls use non-valid patents to sue other companies. How is Apple defending its valid patents and other forms of intellectual property encouraging patent trolls in any way??? That doesn't make any sense.
    If it were true that they only assert "non-valid patents" then they wouldn't be successful ones would they?
  • Reply 20 of 37
    Awww...  Poor firms don't want to live cease tech from the patent holders... Sheesh. That's what the law was invented for. 

    Now shut up and pay up. 
    edited August 2016
Sign In or Register to comment.