by Perry J. Saidman
On August 4, 2014, five amicus curiae (friend of the court) briefs were files in the Apple v. Samsung appeal at the U.S. Court of Appeals for the Federal Circuit. There are many issues on appeal, including design patent infringement and damages.
The amicus briefs were solely directed to opposing the position of Samsung and its amici that, after a finding of infringement, 35 U.S.C. 289 should be interpreted to require apportionment of a design patent infringer’s profits between the value of the patented design and the value of the rest of the article of manufacture.
Although at first blush this may sound like a rational position, it goes against the statutory history of sec. 289, and over 100 years of case law which has uniformly held that there is to be no apportionment of profits. The latter position is set forth well in the amicus briefs. Some of the main reasons against apportionment are that it is simply impossible to properly apportion profits since form and function of a well-designed product are inextricably intertwined, and it is the design that is out front at the time of purchase – design creates the WOW! factor that draws the consumer’s attention and drives the sale.
The position against apportionment is supported in the various briefs by many design-concious corporations, numerous illustrious design professionals, leading professors of industrial design, and two distinguished law professors.
Here are links to all five briefs:
Design Professionals Amicus Brief