Speaking of Apple v Samsung, the Supreme Court issued its decision in this long-running litigation about design patents. To recap, Samsung copied the design of Apple’s iPhone and infringed Apple’s design patents in the process. There is no question whether the Apple patents are valid – they are. There is no question whether Samsung infringed those patents – it did. Those matters are finally decided and are not appealed. The question for the Supreme Court is how damages for Samsung’s infringement are measured.
The patent statue has a special provision for design patent infringement:
Whoever… (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purposes of sale, or (2) sells or exposes for sale any article of manufacture to which such design… has been applied shall be liable to the owner to the extent of his total profit…
35 U.S.C. section 289. The question is, total profit of what? Is it the profit on the sale of the whole smartphone (as said Apple, and the trial court, and the Federal Circuit Court of Appeals) or just the profit on the visible part of the smartphone that copied the appearance of the iPhone; namely, the smartphone case (as said Samsung). Apple’s position results in very large damages. Samsung’s position results in very small damages.
And the Supreme Court decided – well, not much of anything. The unanimous court decided that the ‘total profit’ can be for a component, or it can be for the whole phone. The Supreme Court refused to make any pronouncements on how damages should be calculated and sent the matter back to the Federal Circuit for better briefs from Apple and Samsung
— Robert Yarbrough, Esq.