There is one unique financial difference between a design patent and a utility patent and it’s one word: apportionment. In the case of Apple v. Samsung, that difference means $2 billion in damages.
“‘Apportionment’ basically means that the patentee only can recoup profits associated with the patented feature, not the entire profit from the sales of the accused product,” writes Christopher Carani, a patent attorney at intellectual property law firm McAndrews, Held & Malloy, Ltd.
Carani sent reporters an email explaining the key foundation to Apple’s $2.52 billion damages claims, with $2 billion-worth related to design patents.
“The no apportionment language (i.e. disgorgement of infringer’s ‘total profits’) was placed in the Patent Act in 1887 in response to a 1886 U.S. Supreme Court case regarding infringement of a design patent on a carpet design, whereby the Court said the design patentee was only entitled to 6 cents in damages — the portion of the damages attributable to the design,” Carani explains.
“In response to that holding, a holding that members of Congress felt was a miscarriage of justice, the 1887 Patent Act was enacted and provided a remedy for ‘total profit’ without apportionment for design patent infringement,” he adds.
According to Carani, the Court’s decision will likely have a major influence on cellphone design in the coming years. If Apple wins, new designs will flourish; “…despite Samsung’s cries, there are many different ways to design these devices. Young, creative and hungry industrial designers the world over will no doubt rise to the challenge of designing non-infringing devices.”
“However, if Samsung prevails,” Carani says, “we can expect the market (including Samsung and others) to coalesce around the minimalist design embodied in the iPhone, iPad and Galaxy devices for at least 2-3 years.”
No Comments Yet
You can be the first to comment!
Leave a comment
You must be logged in to post a comment.