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?
This is exactly the argument I've been making since 2012. Design patents are an aspect of trademark law. The penalties shouldn't even be based upon the revenue attained by the infringer, but rather by the revenue deemed to have been lost by the design owner, or other damages suffered by the owner of the original design, which might be reputational if a copycat introduces into the market an inferior product, perhaps at a lower price, that fools customers or reduces the prestige and rarity of the originator's product.
Here's the write-up I posted here in 2012, a few times since, for those who want to gain a bit of insight:
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.
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?
This is exactly the argument I've been making since 2012. Design patents are an aspect of trademark law. The penalties shouldn't even be based upon the revenue attained by the infringer, but rather by the revenue deemed to have been lost by the design owner, or other damages suffered by the owner of the original design, which might be reputational if a copycat introduces into the market an inferior product, perhaps at a lower price, that fools customers or reduces the prestige and rarity of the originator's product.
Here's the write-up I posted here in 2012, a few times since, for those who want to gain a bit of insight:
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.
For the most part, I agree with you, and thank you for the lengthy post.
My issue is that the iPhone, in my mind, actually became iconic on release, and Samsung copied it heavily simply because Samsung knew the prototypical iPhone was a disruption, and Samsung had to be the fastest, fast follower.
Patent law is based on dissembling products into the smallest patentable components, modules and features, with no or little value attached to the synergy and synchronicity of the design, operation and manufacture of the finished product.
The iPhone was a once in a lifetime disruption, and boy, what an unbelievable great finished product it was in 2007!
Patent trolls take advantage of any situation.
Ss proved itself a thief through blatant, intentional copy.
Take em out!
Other tech firms are bot worried about any trolls but themselves.
As far as I can tell, goog stands to lose most from this case.
Android started out as a WiMo rip-off, then evolved into an iOS rip-off.
At lease Canonical and Metro tried something original and creative in response to Apple.
Android should be destroyed.
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?
………………...
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.
The classic example of this is the iconic shape of the Coca Cola bottle.
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?
Since the Apple vs Samsung trial there has been much written about the merit of design patents.
But how does this relate to design patent law? The penalties shouldn't even be based upon the revenue attained by the infringer, but rather by the revenue deemed to have been lost by the design owner, or other damages suffered by the owner of the original design
I've never read any legal argument against the existence of design patents as a category, not one, nor is SCOTUS or any other court weighing "the merit of design patents".
What they ARE weighing is the legal penalties attached to infringing on one. As such you and I are apparently agree! Your suggestion would require Samsung to win, Apple to lose, and SCOTUS to send the case back to the original trial court for a re-hearing and rehash of a proper monetary award. As you say an automatic award of 100% of the profits is not proper and actual harm to the IP holder should be the beginning basis. That's your essential argument, and mine as well.
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?
Since the Apple vs Samsung trial there has been much written about the merit of design patents.
But how does this relate to design patent law? The penalties shouldn't even be based upon the revenue attained by the infringer, but rather by the revenue deemed to have been lost by the design owner, or other damages suffered by the owner of the original design
I've never read any legal argument against the existence of design patents as a category, not one, nor is SCOTUS or any other court weighing "the merit of design patents".
What they ARE weighing is the legal penalties attached to infringing on one. As such you and I are apparently agree! Your suggestion would require Samsung to win, Apple to lose, and SCOTUS to send the case back to the original trial court for a re-hearing and rehash of a proper monetary award. As you say an automatic award of 100% of the profits is not proper and actual harm to the IP holder should be the beginning basis. That's your essential argument, and mine as well.
And might actually result in a higher award, given that a lost iPhone sale, at Apple's higher average selling price, is more than the revenue gain by Samsung for having effectively taken away that sale from Apple. It does take much imagination to think how many of those buyers of the infringing Samsung phones would have purchased an I.phone had Samsung remained on its path of phones with tons of buttons, no multi-touch interface, etc, rather than blatantly ripping off, with Google's help, the entire iPhone look and interaction model.
Since the Apple vs Samsung trial there has been much written about the merit of design patents.
But how does this relate to design patent law? The penalties shouldn't even be based upon the revenue attained by the infringer, but rather by the revenue deemed to have been lost by the design owner, or other damages suffered by the owner of the original design
I've never read any legal argument against the existence of design patents as a category, not one, nor is SCOTUS or any other court weighing "the merit of design patents".
What they ARE weighing is the legal penalties attached to infringing on one. As such you and I are apparently agree! Your suggestion would require Samsung to win, Apple to lose, and SCOTUS to send the case back to the original trial court for a re-hearing and rehash of a proper monetary award. As you say an automatic award of 100% of the profits is not proper and actual harm to the IP holder should be the beginning basis. That's your essential argument, and mine as well.
And might actually result in a higher award, given that a lost iPhone sale, at Apple's higher average selling price, is more than the revenue gain by Samsung for having effectively taken away that sale from Apple. It does take much imagination to think how many of those buyers of the infringing Samsung phones would have purchased an I.phone had Samsung remained on its path of phones with tons of buttons, no multi-touch interface, etc, rather than blatantly ripping off, with Google's help, the entire iPhone look and interaction model.
You are correct, the damages might and maybe should be higher if it's reheard. In cases involving other litigants over design patents perhaps little to no damages would be proper. The law as interpreted now does not allow for either one.
I appreciate your honesty in supporting Samsung's argument over Apple's in this specific instance and I know how hard that is for you to admit. You too now say in your opinion SCOTUS should establish a different damages basis than the Appeals Court interpretation of design patent law and send this back to the Federal Circuit for a retrial.
I got a lot of dislikes for what is to me and to you plain common sense, but I think that's because few commenters understood what's being argued before the Supreme Court. In one of those rare moments we've found you and I agree.
I've never read any legal argument against the existence of design patents as a category, not one, nor is SCOTUS or any other court weighing "the merit of design patents".
What they ARE weighing is the legal penalties attached to infringing on one. As such you and I are apparently agree! Your suggestion would require Samsung to win, Apple to lose, and SCOTUS to send the case back to the original trial court for a re-hearing and rehash of a proper monetary award. As you say an automatic award of 100% of the profits is not proper and actual harm to the IP holder should be the beginning basis. That's your essential argument, and mine as well.
And might actually result in a higher award, given that a lost iPhone sale, at Apple's higher average selling price, is more than the revenue gain by Samsung for having effectively taken away that sale from Apple. It does take much imagination to think how many of those buyers of the infringing Samsung phones would have purchased an I.phone had Samsung remained on its path of phones with tons of buttons, no multi-touch interface, etc, rather than blatantly ripping off, with Google's help, the entire iPhone look and interaction model.
That's actually the crux of the matter; most of the iPhone competitors make little or no profit and certainly not at the scale of Apple or even Samsung. Even if you were able to extract 100% of the profits, would it even matter as a penalty in comparison to Apple's lost profit?
Lost in this is the fact that Apple, unlike most of the rest of the industry, actually had the necessary skills and capabilities to create that prototypical iPhone complete. A single photo of the iPhone and screen was all the roadmap that the industry needed to develop their own designs post iPhone, but even with that, Samsung still decided at the highest levels of the company, that copying Apple iPhone in detail was necessary for it to compete.
I've never read any legal argument against the existence of design patents as a category, not one, nor is SCOTUS or any other court weighing "the merit of design patents".
What they ARE weighing is the legal penalties attached to infringing on one. As such you and I are apparently agree! Your suggestion would require Samsung to win, Apple to lose, and SCOTUS to send the case back to the original trial court for a re-hearing and rehash of a proper monetary award. As you say an automatic award of 100% of the profits is not proper and actual harm to the IP holder should be the beginning basis. That's your essential argument, and mine as well.
And might actually result in a higher award, given that a lost iPhone sale, at Apple's higher average selling price, is more than the revenue gain by Samsung for having effectively taken away that sale from Apple. It does take much imagination to think how many of those buyers of the infringing Samsung phones would have purchased an I.phone had Samsung remained on its path of phones with tons of buttons, no multi-touch interface, etc, rather than blatantly ripping off, with Google's help, the entire iPhone look and interaction model.
That's actually the crux of the matter; most of the iPhone competitors make little or no profit and certainly not at the scale of Apple or even Samsung. Even if you were able to extract 100% of the profits, would it even matter as a penalty in comparison to Apple's lost profit?
Lost in this is the fact that Apple, unlike most of the rest of the industry, actually had the necessary skills and capabilities to create that prototypical iPhone complete. A single photo of the iPhone and screen was all the roadmap that the industry needed to develop their own designs post iPhone, but even with that, Samsung still decided at the highest levels of the company, that copying Apple iPhone in detail was necessary for it to compete.
So you too believe Apple should lose their argument at SCOTUS and the case regarding design patents ONLY should be retried? That took a while to get to, but now three of us agree that Samsung should win this one at the Supreme Court (and if you don't then speak up! Silence is confirmation). And yes I do totally understand how much you might dislike supporting Samsung over Apple on ANYTHING. Samsung's business methods are smelly at times.
I think that it seems like manufacturers are less and less fearfull of these designpatents after this Samsung spatt. now look at newer phones. Just plain copies of iphone 6...Actually Samsung is on the far end of this scale with most of their phones (except A3/A5)
That's actually the crux of the matter; most of the iPhone competitors make little or no profit and certainly not at the scale of Apple or even Samsung. Even if you were able to extract 100% of the profits, would it even matter as a penalty in comparison to Apple's lost profit?
Lost in this is the fact that Apple, unlike most of the rest of the industry, actually had the necessary skills and capabilities to create that prototypical iPhone complete. A single photo of the iPhone and screen was all the roadmap that the industry needed to develop their own designs post iPhone, but even with that, Samsung still decided at the highest levels of the company, that copying Apple iPhone in detail was necessary for it to compete.
If There is no alternative then yes. People (Android buyers) would buy phones that cost more. But Smartphone adaption wouldn't be like it is today. Those that couldnt find the money wouldnt own one...
That's actually the crux of the matter; most of the iPhone competitors make little or no profit and certainly not at the scale of Apple or even Samsung. Even if you were able to extract 100% of the profits, would it even matter as a penalty in comparison to Apple's lost profit?
Lost in this is the fact that Apple, unlike most of the rest of the industry, actually had the necessary skills and capabilities to create that prototypical iPhone complete. A single photo of the iPhone and screen was all the roadmap that the industry needed to develop their own designs post iPhone, but even with that, Samsung still decided at the highest levels of the company, that copying Apple iPhone in detail was necessary for it to compete.
So you too believe Apple should lose their argument at SCOTUS and the case regarding design patents ONLY should be retried? That took a while to get to, but now three of us agree that Samsung should win this one at the Supreme Court (and if you don't then speak up! Silence is confirmation). And yes I do totally understand how much you might dislike supporting Samsung over Apple on ANYTHING. Samsung's business methods are smelly at times.
I believe that the Court should side with Apple. The Court should validate, that in the marketplace, consumers purchase a finished product, not a BOM of parts and specifications, which is what the industry supporting Samsung would like you to believe.
That's actually the crux of the matter; most of the iPhone competitors make little or no profit and certainly not at the scale of Apple or even Samsung. Even if you were able to extract 100% of the profits, would it even matter as a penalty in comparison to Apple's lost profit?
Lost in this is the fact that Apple, unlike most of the rest of the industry, actually had the necessary skills and capabilities to create that prototypical iPhone complete. A single photo of the iPhone and screen was all the roadmap that the industry needed to develop their own designs post iPhone, but even with that, Samsung still decided at the highest levels of the company, that copying Apple iPhone in detail was necessary for it to compete.
So you too believe Apple should lose their argument at SCOTUS and the case regarding design patents ONLY should be retried? That took a while to get to, but now three of us agree that Samsung should win this one at the Supreme Court (and if you don't then speak up! Silence is confirmation). And yes I do totally understand how much you might dislike supporting Samsung over Apple on ANYTHING. Samsung's business methods are smelly at times.
I believe that the Court should side with Apple. The Court should validate, that in the marketplace, consumers purchase a finished product, not a BOM of parts and specifications, which is what the industry supporting Samsung would like you to believe.
So no, I'm not in agreement with you.
Really? So then instead you believe Apple should only be entitled to a relative pittance for infringing on the design of the iPhone since that's all that current law allows for? Well OK then. Sure sounded like you were arguing that Samsung's "theft" of Apple's iPhone design was worth a whole lot more than Samsung's tiny profits on a few US phones. As your correctly noted the law reads now no profits then no damages. Those that can prove on paper they had no or nearly no profits can copy with impunity? "Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties."
EDIT: Note that in China one Peking court has already ruled that a Chinese company's design patent has been infringed by Apple's iPhone. If they interpreted their design patent damages the same there as here that Chinese company is automatically awarded every penny of profit from sales of the iPhone in that country if the infringement is upheld.
I believe that the Court should side with Apple. The Court should validate, that in the marketplace, consumers purchase a finished product, not a BOM of parts and specifications, which is what the industry supporting Samsung would like you to believe.
So no, I'm not in agreement with you.
Really? So then instead you believe Apple should only be entitled to a relative pittance for infringing on the design of the iPhone since that's all that current law allows for? Well OK then. Sure sounded like you were arguing that Samsung's "theft" of Apple's iPhone design was worth a whole lot more than Samsung's tiny profits on a few US phones. As your correctly noted the law reads now no profits then no damages. Those that can prove on paper they had no or nearly no profits can copy with impunity?
"Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties."
EDIT: Note that in China one Peking court has already ruled that a Chinese company's design patent has been infringed by Apple's iPhone. If they interpreted their design patent damages the same there as here that Chinese company is automatically awarded every penny of profit from sales of the iPhone in that country if the infringement is upheld.
As specious arguments go, that one above sets the bar.
I believe that the Court should side with Apple. The Court should validate, that in the marketplace, consumers purchase a finished product, not a BOM of parts and specifications, which is what the industry supporting Samsung would like you to believe.
So no, I'm not in agreement with you.
Really? So then instead you believe Apple should only be entitled to a relative pittance for infringing on the design of the iPhone since that's all that current law allows for? Well OK then. Sure sounded like you were arguing that Samsung's "theft" of Apple's iPhone design was worth a whole lot more than Samsung's tiny profits on a few US phones.
"Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties."
EDIT: Note that in China one Peking court has already ruled that a Chinese company's design patent has been infringed by Apple's iPhone. If they interpreted their design patent damages the same there as here that Chinese company is automatically awarded every penny of profit from sales of the iPhone in that country if the infringement is upheld.
As specious arguments go, that one above sets the bar.
Here's an article from well before the Apple Samsung case over design patents was heard, so it didn't even enter the conversation at the time. It's a simple warning of what might occur without a change in the law.
Comments
Here's the write-up I posted here in 2012, a few times since, for those who want to gain a bit of insight:
My issue is that the iPhone, in my mind, actually became iconic on release, and Samsung copied it heavily simply because Samsung knew the prototypical iPhone was a disruption, and Samsung had to be the fastest, fast follower.
Patent law is based on dissembling products into the smallest patentable components, modules and features, with no or little value attached to the synergy and synchronicity of the design, operation and manufacture of the finished product.
The iPhone was a once in a lifetime disruption, and boy, what an unbelievable great finished product it was in 2007!
The classic example of this is the iconic shape of the Coca Cola bottle.
http://www.coca-colacompany.com/stories/the-story-of-the-coca-cola-bottle
What they ARE weighing is the legal penalties attached to infringing on one. As such you and I are apparently agree! Your suggestion would require Samsung to win, Apple to lose, and SCOTUS to send the case back to the original trial court for a re-hearing and rehash of a proper monetary award. As you say an automatic award of 100% of the profits is not proper and actual harm to the IP holder should be the beginning basis. That's your essential argument, and mine as well.
I appreciate your honesty in supporting Samsung's argument over Apple's in this specific instance and I know how hard that is for you to admit. You too now say in your opinion SCOTUS should establish a different damages basis than the Appeals Court interpretation of design patent law and send this back to the Federal Circuit for a retrial.
I got a lot of dislikes for what is to me and to you plain common sense, but I think that's because few commenters understood what's being argued before the Supreme Court. In one of those rare moments we've found you and I agree.
Lost in this is the fact that Apple, unlike most of the rest of the industry, actually had the necessary skills and capabilities to create that prototypical iPhone complete. A single photo of the iPhone and screen was all the roadmap that the industry needed to develop their own designs post iPhone, but even with that, Samsung still decided at the highest levels of the company, that copying Apple iPhone in detail was necessary for it to compete.
So no, I'm not in agreement with you.
"Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties."
EDIT: Note that in China one Peking court has already ruled that a Chinese company's design patent has been infringed by Apple's iPhone. If they interpreted their design patent damages the same there as here that Chinese company is automatically awarded every penny of profit from sales of the iPhone in that country if the infringement is upheld.
http://republic3-0.com/design-patents-discontents/
Comments?