Brian J. Love, assistant professor of law at Santa Clara University School of Law, in an Op-Ed in the LA Times suggests that the appropriate compensatory damages in Apple v. Samsung should have been apportioned according to the number of patents infringed divided by the total number of patents the make up a smartphone, a number he puts at 250,000. But does that follow the law?
As BVR’s continuing reports on the tightening standards for recovery in patent infringement cases have made clear, federal courts now require financial experts to provide “in every case” an apportionment of damages between the unpatented and patented features of the product. This would parallel Professor Love’s line of thinking.
The twist in Apple v. Samsung is what this blog has been reporting on all along, the design patents were what mattered most. That strict apportionment standard, most recently articulated in Uniloc v. Microsoft as well as the Oracle v. Google litigation, applies only to suits based on infringement of utility patents. Compare that to the remedy under the Patent Act of 1887, which still entitles the holders of design patents to an “infringer’s entire profits” without the need to split damages between the patented design and the product bearing the design.
What Apple proved was that Samsung had “slavishly copied” the overall physical design, including the look of the icons and the home page, plus the packaging design of the iPhone — and Samsung then conveniently documented their intentions in a condemning email trail. What’s more, the look and feel of iPhone is not difficult to design around, as Google has demonstrated (see http://www.theverge.com/2011/12/7/2585779/android-history).
Consequently, last Friday, a jury handed the American-based Apple an award of $1.05 billion against South Korean-based Samsung. Samsung has vowed to appeal, while Apple intends to use the victory—and the federal recovery standard for design patent infringement—to launch similar suits against other competitors in the smartphone and computer tablet industry. Read the complete digest of Apple, Inc. v. Samsung Electronics Co., 2012 U.S. Dist. LEXIS 90877 (June, 28 2012) in the October Business Valuation Update. The court’s Daubert opinion will be posted soon at BVLaw.