The 125-year-old U.S. patent law that could cost Samsung $2 billion for slavishly copying Apple’s designs

“The 18-minute video presented to the Apple v. Samsung jury Tuesday did a good job explaining what a patent is,” Philip Elmer-DeWitt reports for Fortune. “What it didn’t explain was the difference between a design and a utility patent or, more important, the vast difference in the rewards involved if infringement of one or the other can be proved.”

P.E.D. reports, “Enter Christopher Carani, a patent attorney at Chicago-based intellectual property law firm McAndrews, Held & Malloy, Ltd. In an e-mail sent to reporters Wednesday, he [explains]… ‘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 – the portion of the damages attributable to the design. In response to that holding, a holding that members of Congress felt was a miscarriage of justice, the 1887 Patent Act was enacted and provided a remedy for ‘total profit’ without apportionment for design patent infringement. The provision has largely been a sleeper for 125 years. Now, it has surfaced and done so in a big, big, way – to the tune of $2.0bil, which, if awarded, would represent the largest U.S. patent infringement award of all time.'”

Read more in the full article here.

[Thanks to MacDailyNews Reader “Dan K.” for the heads up.]

Related articles:
Samsung defends decision to share excluded evidence with media – August 1, 2012
Apple says jury should learn that Samsung destroyed evidence – August 1, 2012
Samsung, after ‘begging’ to get Sony into Apple patent trial, flouts judge and releases ‘excluded evidence’ anyway – July 31, 2012
Apple v. Samsung Live Blog: Trial opens with one juror gone, Samsung begging – July 31, 2012
Apple attorney: Instead of innovating, Samsung chose to copy iPhone and iPad – July 31, 2012
Apple aims for total war, salted earth in Samsung patent infringement fight – July 31, 2012
Apple-Samsung jury picked to decide U.S. patent trial; Google engineer fails to make final cut – July 30, 2012


  1. When attorneys piss off the presiding judge on the first day of a trial, as Samsung’s did when they tried to evade her ruling that certain slides not be made public, publishing them on a widely distributed Web site, things tend to go badly.

  2. Dear Apple,
    I know you have 116.999 Billion dollars more than I do, but if you ever need a hand with a kickstarter page to get these bastards, put me down for ten bucks.

      1. I didn’t say it right. Kickstarter raises money for projects. Its crowd funded. I cant think of anything better than to help Apple win these court cases. Heck, I wouldnt mind paying more for my iPhone if it contained NO samsung chips at all!

      2. Used to be the best crowd-sourced project funding idea ever to get money into the hands if startups for developing their ideas into products. Really fun. Now we’re starting to see established companies fun pretend startup projects because they’re too cheap to pay for their own development and want to proceed using OPM.

  3. There’s no proof a “renascence of design” will occur if Apple wins.

    The entire industry was caught with their pants down because Steve Jobs had one of his famous “PARC” moments strolling through the labs of Motorola during its reign as the Razor maker! and since then, the industry’s inclination has been to copy what Apple was doing, and long before the numbers became invaluable.

    Steve Jobs: They’re stealing our designs!
    Tim Cook: Ain’t it great?

    Steve Jobs: I know. But they’re stealing us blind!
    Tim Cook: I repeat. Ain’t it great?

  4. Patents FORCE innovation?! After reading the linked article it becomes clear that patent protection can actually force innovation. There are probably thousands of designers who have other ideas for a cool phone but what business will risk it if copying is cheaper?

    It never occurred to me until now but when you take easier money out of the picture patents can actually force innovation.

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