Monday, March 21, 2016

The Supreme Court will visit an 1887 statute on damages for infringement of design patents in Samsung v. Apple

The Supreme Court has granted cert on the design patent damages question presented in
Samsung v. Apple:

Where a design patent is applied to only a component of a product, should an award of infringer’s profits be limited to those profits attributable to the component?

See the 2015 IPBiz post:

Design patent damages stuck in the year 1887?
, including the text

The no apportionment language (i.e. disgorgement of infringer’s ‘total profits’) was placed in the Patent Act in 1887 in response to a 1886 U.S. Supreme Court case regarding infringement of a design patent on a carpet design, whereby the Court said the design patentee was only entitled to 6 cents in damages

Recall, as to patent history, the light bulb wars were going on in the 1880s. To get a flavor of sentiment in the year 1886,
one has a statement by E. H. Johnson, President of the Edison Electric Light Company:

"The fact that Mr. Edison invented the incandescent lamp in the form in which it is now presented by all electric light companies was so widely proclaimed by the publication thereof in every class of literature at the time of the invention, that it would seem very like an insult to the intelligence of the community to recall it. Indeed, a retrospective view of the history of the great invention is rendered unnecessary by the fact that even the infringing companies themselves do not dwell upon their claim to the ownership of original patents, but fortify their position by the assertion that Edison's patents are invalid and open to the public, and offer in corroboration of their statement the apparent apathy of the Edison Company in the matter of defending them."

Also, Edison's first design patent titled --Design for an incandescent electric lamp -- was to a light bulb design:

Publication number USD12631 S
Publication type Grant
Publication date Dec 27, 1881
Filing date Nov 30, 1880

Heretofore the glass globes used to inclose the carbons of incandescent lamps have been made either of a spherical shape or in the form, when viewed in section, of an ellipse elongated at the ends.

The leading feature of my design consists of having the upper portion of the globe of the form (when viewed in section) of a semicircle and the lower part gradually tapering down to the bottom, where it is set into a socket. The

widest portion of the globe is from A to A, and the form of the globe above these points is a half-sphere, except when it is broken by the projection a, which is occasioned by the breaking olf of the stem of glass remaining after blowing the globe. Below the points A A the diameter of the globe becomes smaller until at the points B B. When it is set into the socket it is less than one-halfthe diameter A A. It will be seen that the globe is thus approximately pear-shaped.

What I claim is- The design for incandescent electric lamps herein described and shown.

Edison's key light bulb patent (223,898) was filed Nov. 4, 1879, a few weeks before the filing of the design patent.

**For a popular account of the cert decision, see USAToday:

** FossPatents had previously noted as to the Samsung getting cert:

The fact that Samsung's petition is certworthy has been confirmed by two recent posts on key IP blogs:

•The SCOTUSblog's Relist Watch:

"The big new relist this week is Samsung Electronics Co. v. Apple, 15-777, which we're guessing is being closely watched by the IP crowd."

That's a verys safe guess. Not sure this can even be described as a guess.

•Wegner's Writings on the Los Angeles Intellectual Property Law Association's (LAIPLA) blog:

"The petition has a higher than usual chance for success."

See also

**And, from Blawgsearch on 21 March 2016:


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