Thursday, July 2, 2015

Samsung Seeks En Banc Review of Federal Circuit Panel Decision on Design Patent Damages

Florian Mueller has already covered this on FOSS Patents, but if you haven't seen it yet, here's a copy of Samsung's petition for rehearing en banc in the Apple v. Samsung case.  (The panel opinion, which I blogged about here, came down in May.)   The petition takes issue with the panel decision both on the substantive law of design patents and on damages.  In addition, here is a copy of an amicus brief in support of Samsung's petition filed by Professor Mark Lemley.  

As you may recall, the panel read 35 U.S.C. § 289 as requiring the defendant to disgorge its entire profit earned as a result of the infringement of a design patent, without any apportionment--a result that is impossible to square with any rational principle of damages.  I would be delighted to see the court grant en banc review, though admittedly the Supreme Court's recent decision in Kimble  doesn't say much for the courts' receptiveness to arguments based on economic rationality alone.   The petition and the brief make some interesting arguments based on legislative history, text, and precedent, though, so there may be hope that the court will see fit to reconsider.  We'll see.

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