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Google, Facebook Urge Supreme Court to Take Up Samsung-Apple Patent Dispute

Tech companies and law school professors argue the design patent laws are outdated.

The Verge

Google and Facebook have joined Samsung in asking the U.S. Supreme Court to weigh in on the long-running patent dispute with Apple.

In filings made public Monday, six companies and 37 law and business school professors took issue with the way damages were awarded in the Samsung case. The South Korean electronics giant forfeited every cent of profit from phones that infringed on Apple’s design patents — even though the smartphone’s patented rectangular shape and rounded corners were only a facet of its appeal, Samsung and others argue.

Stanford Law School Professor Mark Lemley described as “draconian” a design patent rule that forces companies to cough up their entire profits from infringing product — noting that the value of a product comes from more than just its sleek appearance.

“It is barely possible to argue with a straight face that it is the shape and overall ornamental design of the iPhone, rather than its functionality, that motivates consumers to buy it,” Lemley wrote. “It is not even remotely plausible that the shape of the Apple iTunes icon is what motivates people to buy the whole iPhone.”

Lemley argues that people do not buy iPhones for appearance alone, but rather for what the phone does. A typical smartphone might be covered by some 250,000 patents.

A filing by Dell, eBay, Facebook, Google, Hewlett-Packard Enterprise, Vizio and others similarly takes issue with forking over all profits from a product found to infringe on a design patent — a standard that would have “significant ramifications” for those who design and manufacture complex products.

“If allowed to stand, it will lead to absurd results and have a devastating impact on companies … that spend billions of dollars annually on research and development for complex technological products and their components,” wrote Kannon K. Shanmugam for the tech companies.

Design patents, which cover how a product looks, are rooted in a 19th century law intended to protect the designs of carpets, wallpaper, fireplace grates and ornamental spoons, Samsung argued. For those products, design was everything — so it made sense to order imitators to surrender all their profits. Such a standard is out of step with modern products.

“This rule doesn’t make any sense, which is why it’s hard to explain,” Georgetown University law professor Rebecca Tushnet said in an interview Friday. “The Supreme Court should step in and fix that.”

The Electronic Frontier Foundation, Public Knowledge and the Computer & Communications Industry Association also appealed to the Supreme Court to take up the case. If the “total damages” standard is left unchanged, it would open the door to more patent trolls, they predicted.

Samsung has paid Apple $548 million in damages after losing a string of appeals related to patent disputes between the two technology companies. The most sizable chunk of the damages, $400 million, was awarded based on Apple’s design patents.

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