A group of over 100 leading industrial design professionals and educators have filed an Amicus brief supporting Apple’s side in its long running design patent case with Samsung, a battle that began with a 2012 jury verdict in which Apple was initially awarded $930 million in damages as a result of Samsung’s copying of Apple’s industrial designs, before a number of other developments allowed the case to continue on without an end in sight.
As Congress correctly recognized, ‘it is the design that sells’ the product and ‘makes it possible to realize any profit at all.’
In the Amicus brief filed today, a group of notable design experts — which include such names as Braun’s Dieter Rams, Microsoft’s Executive Creative Director Raymond Riley, Bentley’s Director of Design Stefan Hans Sielaff, and even Alexander Wang and Calvin Klein, among dozens of others across the automotive, technology, fashion, and food industries — maintains that the industrial design of a product is in fact the most important factor that drives the sales of the product, supporting the original court and jury’s award that awarded the total profits to Apple from the sale of Samsung’s infringing smartphones, based on the fact that Samsung copied Apple’s designs and profited from them by selling more smartphones.
The brief cites the two key examples of Coca-Cola and General Motors, both of whom shaped their industries and defined their products through industrial design, the former creating an iconic bottle design that is now synonymous with its flagship beverage, and the latter revolutionizing the automotive industry by assigning a head of art and design which created form factors that were far more appealing than Henry Ford’s original black Model T. The brief goes on to cite cognitive science studies that illustrate how design becomes the product in the mind of consumers, how successful technology companies use design to differentiate themselves from competitors — most of whom are often on a relatively equal playing field in terms of technology and features — and how design is particularly important for products with complex technology, as it is the iconic design of a product that appeals to a consumer’s senses and defines the product more than feature lists of spec sheets.
By stealing designs, therefore, manufacturers steal not only the visual design of the product, but also the underlying attributes attached to the design of the product and embodied in the mind of the consumer by the product’s visual appearance.
The brief also specifically refutes Samsung’s argument that an infringing cup holder should result in the award of the entire profits on a car, “because no one could ever be induced into purchasing a Jeep supposing it to be a Porsche simply because the two have cupholders that look the same.”
The other examples cited by Samsung in its original appellate brief are rebuffed in the same manner: “Similarly, no one could ever be induced into purchasing a dinghy supposing it to be a yacht because of the design of the windshield, a Samsung ChromeBook supposing it to be a MacBook because one musical-note icon looks the same, a Dr. Seuss book believing it to be Shakespeare because of the bookbinding design, a Kenmore refrigerator believing it to be a Sub-Zero because of the refrigerator latch casing, or, finally, any ‘electronic device’ believing it to be an iPhone because of one circular button.”
Design patent infringement therefore steals much more than the design itself — it robs innovative companies of the en- tire positive mental model that consumers have created for their brand.
Several examples of industrial design copyright laws from other countries are also mentioned in the brief, noting that in England, “copying a registered design is a criminal offense and infringers face money damages or an account of their profits as an alternative equitable remedy” while in France “design patent infringers […] face not only total profit damages, but also damages reflecting the cost savings of promotional investments resulting from the pirated design, prison sentences of up to three years, and temporary or permanent closure of their business” and in Italy “design patent infringers face permanent injunctions, attachment and destruction of the counterfeited goods, and criminal sanctions, in addition to money damages.” Thus, the brief states, design protection laws in the U.S. must remain strong in order to maintain “America’s lead” in the field of industrial design to continue to “incentivize investment in great design” and by rejecting any “proposals that seek to drastically alter design protections—including serious consequences for infringement.”
After Apple’s initial $930 million award in the case, an appellate court later dropped the awarded amount to $548 million, and Samsung originally agreed to pay after further lower-court appeals were rejected. However, less than two weeks after agreeing to settle the amount with Apple, Samsung appealed the case to the U.S. Supreme Court, asking that it review rulings concerning “design patents” around the look and feel of a product, arguing that the lower courts misapplied the law around design patents regarding ornamental versus functional aspects of a product’s design, and that the 1887 law pertaining to design patents is “outdated and too punitive for modern products such as a smartphone” by requiring that the entire profits from sales of an infringing device be awarded, not merely the profits that would be relevant to the case of infringement. “Under that rule, a jury that awards infringer’s profits must award the entire profits on a car…that contains an infringing cup-holder,” wrote Samsung’s lawyer in the brief.
