“Whoever during the term of a patent for a design, without license of the owner, applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties, ” the law states (emphasis ours).

Samsung, and many of its supporters, believe the reward for infringing a design patent should not involve the “total profits.” Since a smartphone is filled with thousands of patented components, infringing design patents should not amount to the total profit of the smartphone. Apple counters that the whole design sells the phone — removing the need to pay total profits would hamper legal protection for new products and design.

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In recent court filings, Apple has said while “total profit” should mean that Samsung has to pay the total profit of a sale, “article of manufacturer” could mean specific features and not the whole product. The company said in court that significant financial damage would deter people from stealing designs of products.

One line of questioning that was prevalent throughout the hearing concerned how to identify the value of a design from the overall product, according to CNET.

“If I was a juror, I wouldn’t know what to do, ” Justice Anthony Kennedy reportedly said. Justices were skeptical about Samsung’s argument, according to The Verge, as Justice Sonia Sotomayor suggested that the design of a phone “might drive the sale.”

The design of the original Volkswagen Beetle was brought up, as it features many components inside it. Justice Samuel Alito said design was important, but it isn’t the only driving force behind sales.

“Nobody buys a car, even a Beetle, just because they like the way it looks, ” Justice Alito said, according to the Verge.

But while the car has to perform all the other functions cars are expected to do, Justice Elena Kagan said perhaps its design was indeed a primary motivator in sales.

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In its brief, Samsung raised the point that if Apple wins, it would mean someone who infringes on the design of a “patented cupholder” may have to pay the entire profits on a car. It’s why Samsung wants “articles of manufacturing” to mean the specific components of a phone, rather than the whole phone itself.

“The infringement wasn’t found on the whole phone, ” Samsung attorney Kathleen Sullivan said after the hearing. “It asserted three narrow patents. The patent doesn’t apply to the internals of the phone, so Apple doesn’t deserve profits on all of Samsung’s phone.”

She said awarding total profits for infringing design patents would “devalue” the other important patents in a smartphone, according to CNET. A device typically has about 250, 000 patented features, Sullivan noted.

Source: www.digitaltrends.com