Amicus Briefs in Apple v. Samsung: an interesting group of friends


The Apple v. Samsung litigation is easily the most high-profile design patent case in recent memory. Last month I posted on LinkedIn about one of the Federal Circuit decisions in this dispute, concerning injunctive relief.

At about the same time, Samsung petitioned for review by the Supreme Court of an earlier Federal Circuit decision upholding the award of damages under 35 U.S.C. § 289 for design patent infringement based on “the total profit from the article of manufacture bearing the patented design” rather than, as Samsung urged, “the portion of the product as sold that incorporates or embodies the subject matter of the patent.” While acknowledging arguments that “an award of a defendant’s entire profits for design patent infringement makes no sense in the modern world,” the Circuit Court explained that “Those are policy arguments that should be directed to Congress. We are bound by what the statute says, irrespective of policy arguments that may be made against it.”

This month three amicus curiae briefs were filed in support of Samsung’s petition. The amici represent an interesting collection of parties:

  • The first brief is submitted by Public Knowledge and The Electronic Frontier Foundation, non-profit organizations focused, respectively, on “preserving the openness of the Internet and the public’s access to knowledge” and “protect[ing] consumer interests, innovation, and free expression in the digital world.”
  • Joining forces on the second brief are the Hispanic Leadership Fund, the National Black Chamber of Commerce and the National Grange of the Order of the Patrons of Husbandry (a “fraternal organization that has championed America’s farmers, ranchers, and other rural residents for nearly 150 years”). Their stated concerns are that “Entrepreneurs from these communities depend upon the ability to fairly compete in open, competitive markets in order to overcome historic difficulties that have hampered their chances of succeeding in the American marketplace. And millions of minority and rural Americans rely upon affordable smartphones as their only practical means to access the Internet.”
  • The third brief is a joint filing by tech giants Dell, eBay, Facebook, Google, HP Inc., Hewlett Packard Enterprise, Newegg and VIZIO. They contend that the Federal Circuit’s holding, if allowed to stand, “will have significant ramifications both for amici, which develop, manufacture, design, and sell complex, multicomponent technological products, and for the technology industry more generally.” According to the companies, the Federal Circuit’s application of 35 U.S.C. § 289 “ignores the reality of modern, multi-component technological products. Those complex products, which have become the norm throughout the consumer electronics industry, are not purchased primarily based on the design of one or more isolated components.”

The three amicus briefs as well as Samsung’s certioriari position are available on the SCOTUS blog.

Apple’s response to the petition for certiorari is due February 16.


Injunctions in Patent Cases: a perspective on Apple v. Samsung


My IP colleagues may be interested in this article on recent Federal Circuit decisions involving the standard for injunctive relief in patent cases. The article discusses one of the Circuit’s recent decisions in the Apple v. Samsung litigation and how it squares (or not) with the Supreme Court’s holding in eBay v. MercExchange.

A version of this post was first published on LinkedIn on December 17, 2015.