In March, the Supreme Court granted Samsung's petition for writ of certiorari with respect to design patent damages. Thankfully, the top U.S. court will interpret a statute that the Federal Circuit and Judge Koh in the Northern District of California believe allows an unapportioned disgorgement of infringer's profits regardless of how many other patented and non-patented elements a product may have--an approach that is not applied to any other intellectual property right. Meanwhile, both Apple and Samsung have been granted extensions for their filings. Samsung's opening brief is due on June 1. The amici curiae ("friends of the court") supporting will then have to file their briefs on or before June 8.
This will be the fourth round of friend-of-the-court submissions in connection with this extremely important issue:
In 2014, amicus briefs were filed ahead of the Federal Circuit opinion on Samsung's appeal of the Northern District of California ruling. Samsung's supporters included 27 law professors and industry group CCIA, which presented the theory that I believe is Samsung's best shot now. Apple received support from companies, with maybe one exception, could be described as no-tech and low-tech companies.
After the Federal Circuit sided with Apple last year, Samsung petitioned for a rehearing. Google, Facebook, HP and others filed an amicus brief in support of the petition for rehearing, in which they warned that a company could lose its entire profits over a single patented icon design. CCIA also supported the petition.
The Federal Circuit denied the petition, and Samsung went on to petition the Supreme Court. Earlier this year, its petition received broadbased support from industry as well as non-governmental organizations and academia. The issue was certworthy enough on its own but those amicus briefs probably made it particularly easy for the Supreme Court to identify this as a case to take on. There were no amicus briefs against the petition, but that, in all fairness, doesn't mean much: it's generally considered counterproductive to express an interest in the denial of a petition since it may serve to further raise the profile of the matter. I'm sure Apple didn't encourage anyone to file.
When the fourth round of amicus briefs (firstly the ones in support of Samsung's position, then Apple's backers) come in, it would be very surprising if Apple got more support, in qualitative or in quantitative terms, than Samsung on this issue. The economy at large and society at large stand to lose from overcompensation of design patent holders. But Apple, with its vast resources, is now probably making quite an effort to drum up support, and that effort will yield some results.
There are four main categories of stakeholders among the potential amici curiae in this case:
Tech companies: In the past, Apple had virtually no support from that group of stakeholders, and Samsung had plenty. Technology businesses typically don't want their engineering efforts to be undervalued (but that is what an unapportioned disgorgement of infringer's profits would do). Samsung appears to hold more U.S. design patents than any other company, and Samsung itself is now fighting for apportionment. So far, the only tech company (besides Apple) that I've seen enforce a design patent is Microsoft (in its patent spat with Corel), and Microsoft may consider iOS the "lesser evil" among competing operating systems than Android. Then, Microsoft has actually advocated reasonableness in patent remedies (and balanced procedural rules) in a number of cases over the last 10 years, and I'm sure Microsoft wouldn't want to be liable for a disgorgement of infringer's profits if a single Windows icon was ever found to infringe someone else's design patent.
No-tech and low-tech companies: Even product categories that are less multifunctional than smartphones and tablet computers typically embody more than just one patentable design. It is, therefore, hard to imagine that many companies from outside the high-tech sector would support Apple, but we'll see.
Non-governmental organizations: public interest advocates routinely oppose overcompensation of right holders.
The U.S. government: In a high-profile context like this, the administration usually expresses its views, but it doesn't have to (for example, it can also file something that fills a lot of pages without clearly taking anybody's side, or it could even elect not to file anything at all). It's one of the Solicitor General's tasks to represent the United States in court. The Solicitor General is a Department of Justice (DoJ) official, but the DoJ will likely consult with key government agencies such as the United States Patent and Trademark Office (USPTO) and the Department of Commerce on this matter. The USPTO never wants to discourage patentees from filing applications, but it also knows that economically devastating and blatantly unreasonable remedies ultimately hurt the patent system and could result in legislative action. The Department of Commerce has to think about implications for the economy at large, not just one company, albeit the #1 U.S. company by some criteria.
In about five weeks from now, we'll see how successful Samsung's mobilization efforts have been, and two months after that we'll see the fruits of Apple's campaigning.
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