As the smartphone wars reheat, the threat of chilling innovation looms | TechCrunch

As the smartphone wars reheat, the threat of chilling innovation looms | TechCrunch



...A timely example of the court’s influence in the system is the high-profile Apple versus Samsung design patent case, which represents an opportunity for critical clarity. In April, the U.S. Supreme Court agreed to review the case and a ruling that raises questions regarding how to protect investment in product development, as well as the appropriate remedies when infringement is found....


...The Electronic Frontier Foundation also submitted a brief about the ruling under review, which states that, “the patent system is supposed to offer fair reward for inventors, not excessive, unfair compensation that threatens our access to technology.”...


...At the center of the Apple versus Samsung case are design patents. Unlike utility patents, which cover “function,” design patents protect “ornamental appearance” (akin to a trade dress style of protection), a term not easily defined. And therein lies the problem. When design patent protections were first devised, more than 100 years ago, they were typically issued to protect entire objects or products from copying, wherein copyright law was not applicable, as utilitarian functionality is a premise for protection.

Thus, a “total profit” remedy seemed equitable and logical and provided patentees with a vehicle for the lost profit restitution if they fell victim to unlawful copying of their products, often with decorative characteristics that set them apart from the other carpet, teapot or saddle.

Today, design patents are typically applied for and issued covering singular features of a product’s design. In the Apple case, those designs are the rounded rectangle casing of the phone, a grid of icons on the screen and a bezel. Under a previous court ruling, Samsung was ordered to pay Apple the total profits it received from the smartphones that infringed these patents...

...Design patents offer a far more lucrative weapon for patent trolls,...patent trolls have cost U.S. startup entrepreneurs about $21.7 billion in venture capital funds in the five years preceding the report.