Design Patent Community Rues Apple Stance at Supreme Court

On October 11, 2016, the Supreme Court heard oral arguments in Apple v. Samsung, a case revolving around design patents and the standard of awarding damages in patent infringement cases at the Supreme Court. During oral arguments, Apple accepted a multi-factor test proposed by the United States government that would attempt to determine what portion of the infringer’s profits correspond to the design it copied. However, many IP practitioners expressed concern about the effect that this type of test would have on design patent litigation in the future. Bloomberg BNA contact Finnegan attorney Elizabeth D. Ferrill for her thoughts on the oral arguments.

"Both parties argued that although the test resulted in a division of profits, this was not the type of apportionment that the Congress had tried to avoid in enacting Section 289 [which allows a district court to award damages in design patent cases only to the extent of the infringer's total profit if it sells or exposes for sale any article of manufacture that infringes the patent owner’s design patents]. At the end of the day, this is likely a distinction without a difference."