A cartoon showing Homer Simpson using an iPhone may indeed have had an impact on a high-profile smartphone patent dispute as the screen design patent it relates to apparently accounts for approximately half a billion dollars in design patent damages. After three days and a half of deliberation, the re-retrial jury in the first Apple v. Samsung case in the Northern District of California awarded Apple a total of approximately $538.6 million in damages from Samsung (related to some old phones--mostly the first two generations of the Galaxy S), $533.3 million of which relate to design patents and $5.3 million to utility (i.e., technical) patents. Here's the verdict form (this post continues below the document):
The amount is similar to what Apple won in previous trials. The August 2012 billion-dollar verdict included trade dress (later thrown out by the Federal Circuit) and a third utility patent (the '915 pinch-to-zoom API patent, which has been held invalid in the meantime, though theoretically it could still be revived). A retrial over some products was materially consistent with the original verdict. And so is, after years of appellate and post-appellate proceedings and despite the extremely important clarification of the law that Samsung had obtained from the Supreme Court, the latest verdict.
The jury had asked two questions, and both questions showed they were really struggling with determining the relevant article of manufacture (AoM). If the jury had determined that the design patents in question covered only certain components (casing and screen), the amount would have been in the tens--not hundreds--of millions of dollars, but given that Apple was seeking more than $1 billion, the jury would probably have been inclined (in that hypothetical scenario) to award substantially more than the amount Samsung described as reasonable (less than $30 million). At the same time, given that juries often come down somewhere in the middle, a billion-dollar award was a possibility, but far less probable than the combination of agreeing with Apple on the AoM but with Samsung on most or all of its deductions.
One juror explained to Law360's Dorothy Atkins how the jury arrived at the conclusion that the design patent damages award had to be based on the entire smartphone, not on components (this post continues below the two tweets):
For the 305 patent they found the Aom was the entire phone and the d677 patent covered parts. She says she was the sole juror disagreeing with the others today and yesterday.— Dorothy M. Atkins (@doratki) May 24, 2018
Juror says she didn't think about the financials or about punishing Samsung and they all agreed pretty quickly that the d'305 covered the whole phone bc can't see the design without the phone.— Dorothy M. Atkins (@doratki) May 24, 2018
Throughout the years, including this month, I've repeatedly expressed concern over software patents styled as screen design patents. The amount wasn't shocking because, again, it was consistent with previous verdicts, even though I, as a juror, would have arrived at a different AoM determination and, therefore, a lower amount. In my opinion, the law should be changed to allow apportionment because an AoM-based figure is quite often going to be the wrong one, especially in a case like this where there was a huge discrepancy between the economics of the two approaches to the AoM. But with the current statute, the question was just whether Apple would be undercompensated or hugely overcompensated, and the latter is what that jury verdict comes down to. But the shocking and somewhat unexpected part is the fact that a screen design patent was ultimately considered decisive is what I'm concerned about. That will encourage patent trolls to obtain and assert more screen design patents.
According to media reports, Apple reiterated how much value it attaches to design, and Samsung is now going to consider its options. Those options are post-trial motions and, possibly, another appeal.
While the focus in recent years was on the AoM question and proper interpretation of 35 U.S.C. § 289, I have already expressed on prior occasions that I'd have liked to see more of a focus on the question of whether screen layouts should be patentable.
I read on Twitter that Apple and Samsung may actually settle the case now, which would be good. Better late (more than seven years after the filing of the initial complaint) than never. Let's see what happens now. And regardless of what happens here, it's high time that more people woke up and understood the threat that screen layout design patents--which can cover subject matter that wouldn't pass the patentability criteria (including, but not limited to, patent-eligibility) for utility patents--pose. Apple v. Samsung is an extraordinary case in various ways. My concern is about a huge number of other cases in which such patents might be asserted.
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