By now most of us are familiar with the high stakes Apple v. Samsung case (or Samsung v. Apple; as the two companies cannot agree whose name should be first) involving patents and allegations of copying each other’s products. The case is big enough that it has even made waves in popular culture, with talk show host Conan O’Brien weighing in. However, what is missing from most coverage of this case is the historical context for the current state of patent law, particularly with regard to design patents. In 2001 Apple received 10 design patents and Samsung eight. 10 years later, in 2011, Apple received 123 patents and Samsung 333 (Samsung creates many more products than Apple). Both companies show no signs of slowing down in 2012. The law itself didn’t change, so what happened in those 10 years that so fundamentally changed these companies’ design patent-seeking behavior?
There are several factors at work here, and it would be virtually impossible to pinpoint any one area as the impetus for this massive acceleration in acquiring design patents, but there are a couple likely culprits.
Apple readily admits that sleek design accounts for a large portion of its success, so it makes sense that it would seek to protect what it sees as a core business interest—the unique look and feel of Apple products. Apple did not make this decision in a bubble, however, and the possibility of a patent “arms race” being largely responsible for the proliferation of design patents is not farfetched, given that this has been going on for some time with utility patents.
Another possible reason is a patent law provision dating back to 1887 allowing a patentee to receive ALL of the profits from a product for design patent infringement, not just apportioned profits like those received in utility patent cases. A law dating back over a century likely did not by itself create this huge demand for design patents, but the possibility for a huge verdict was certainly not lost on Apple or Samsung. The potential for winning (or losing) such huge amounts of money made design patents worth the investment for Samsung and Apple, despite the difficulty of defending them.
If Apple prevails in this case the trend toward acquiring ever more design patents will almost certainly gain even more steam as other companies see that design can be just as important as utility. Whether or not this would lead to less copying and more innovation or increasingly expensive and innovation-stifling patent wars remains to be seen.
Read other posts on the Apple/Samsung showdown: