Tuesday, June 14, 2016

First Round of Amicus Briefs in Samsung v. Apple Design Patent Damages Case

Earlier this month I published a post on three pending patent damages matters before the U.S. Supreme Court:  the pending Halo and Stryker cases involving enhanced damages, the pending Samsung v. Apple case on design patent damages, and a cert petition filed by CSIRO in its litigation against Cisco.  (I'm thinking of getting a tee shirt that says "I was into patent damages before it was cool."  Then again, maybe not.)  Yesterday the Supreme Court issued its opinion in Halo and Stryker (see post here).  On Sunday, over at FOSS Patents Florian Mueller published a post discussing and linking to the first round of amicus briefs filed in the Samsung v. Apple case, available here.  I don't have anything to add at this point--I haven't read all of the briefs myself.  All that I can say at this point is that, if yesterday's opinion in Halo and Stryker  is any guide, there is a risk that the compelling policy arguments against awarding the infringer's entire profit will get short shrift, and that the court will instead focus on text and history--though, depending on how one interprets the text and history, I am hopeful that this might still lead to an appropriate outcome.  Perhaps the Court will conclude that courts can avoid an absurd result (awarding the entire profit earned from the sale of a device that incorporates thousands of patented features, if even one single design patent is infringed) because they have the discretion to narrowly define the term "article of manufacture" so that it isn't coextensive with the entire end product.  Heaven knows we wouldn't want a "rigid" rule, after all . . . .

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