Now foe some non election news.
Conundrum for Justices: Does a Design Patent Cover a Whole Smartphone?
WASHINGTON — The Supreme Court on Tuesday seemed inclined to let Samsung have a fresh shot at arguing that it does not have to give up all of its profits for copying a part of the distinctive look of Apple’s iPhone.“It seems to me that the design is applied to the exterior case of the phone,” said Chief Justice John G. Roberts Jr. “It’s not applied to all the chips and wires.”
It followed, he said, that “there shouldn’t be profits awarded based on the entire price of the phone.”
Several justices seemed to agree that the damages Samsung must pay may well be less than its total profits of about $400 million on several phones. They said the right award might be limited to profits attributable to the protected features, including the iPhone’s rounded corners and grid of icons.
But the justices seemed frustrated about how to articulate the right legal standard. Justice Anthony M. Kennedy said he did not know what jurors should be told in deciding how much companies that infringe design patents must pay.
“Neither side gives us an instruction to work with,” he said.
Justice Sonia Sotomayor echoed the point. “How do we announce the right test?” she asked.
Kathleen M. Sullivan, a lawyer for Samsung, said jurors could, for instance, hear expert testimony from accountants.
Justice Kennedy responded that such evidence could not place a value on a “stroke of genius” like the design of the Volkswagen Beetle. That analogy came up throughout the argument, with some justices arguing that the car’s design provided much of its value.
Justice Samuel A. Alito Jr. disagreed. “I can’t get over the thought that nobody buys a car, even a Beetle, just because they like the way it looks,” he said. “What if it, you know, costs, I think, $1,800 when it was first sold in the United States? What if it cost $18,000? What if it got two miles per gallon? What if it broke down every 50 miles?”
Justice Stephen G. Breyer said jurors could be given examples. “You know, wallpaper, you get the whole thing,” he said, referring to total profits. “A Rolls Royce thing on the hood? No, no, no. You don’t get all the profit from the car.”
From what I’ve read before Apple is suing basically for the ‘look and feel’ of their phones, the corners and beveled edges. I don’t see how those can those can be patented, they are design choices that just exist for engineers of designers to choose from.
Although it hasn’t turned into a court case yet I just read that a manufacturer of cheerleader uniforms is trying to patent stripes and chevrons.