Tech firms worry Supreme Court win for Apple over Samsung could benefit patent trolls
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.
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.
Comments
On the other hand if copying is made legal we'll be China within a decade.
Thieves should have to pay: http://samsungcopiesapple.tumblr.com
That's like saying "fiduciary responsibility experts from the likes of Congress"
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?)
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.
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?
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.
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.
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.
Now shut up and pay up.