Looking at the Months and Years After Apple's Big Patent Win

Sue Reisinger

Corporate Counsel

08-28-2012

Apple Inc. is expected to file for injunctions this week against the sale of some 24 types of Samsung Electronics Co. smartphones and tablets in the U.S. as it waits to see if the judge will hike the $1 billion in damages awarded last week by a jury that found the South Korean company had “willfully” infringed Apple’s iPhone and iPad patents [PDF].

“Willfully” is the key word here, triggering the allowance of up to treble damages in patent cases. In addition, other punitive damages could be awarded for violations of Apple’s trademark or trade dress (i.e., how a product is presented visually).

A post-trial hearing is set for September 20 in U.S. District Court in San Jose, and may include a Samsung motion for a rehearing.

Eventually, the size of the award, and the verdict itself, will likely be appealed first to the U.S. Court of Appeals for the Federal Circuit in Washington D.C., and then perhaps to the U.S. Supreme Court. The case could linger on for years.

Saying “the battle is far from over,” Samsung lawyer John Quinn, name partner at Quinn Emanuel, told The AmLaw Litigation Daily (a sibling publication of CorpCounsel.com) that the company would file a motion to overturn the verdict. And if that fails, Quinn said, they would go to the appeals court.

It’s also possible that Apple general counsel Bruce Sewell and Samsung chief legal officer Kim Hyun-chong could still hammer out a settlement to end their global patent wars, but the two failed to do that in mid-May with a court-appointed mediator and their CEOs in the room.

Meanwhile, reaction to the Apple victory has been mixed among intellectual property experts.

Chip Lutton Jr., GC at Nest, which makes “smart” thermostats, praised the outcome. Lutton, who spent 10 years as Apple’s associate general counsel for intellectual property, told The New York Times, “It’s good for intellectual property, and good for firms that invest in design.”

But others weren’t so positive, like professor Robin Feldman, of the University of California Hastings College of Law and author of the book Rethinking Patent Law (Harvard University Press, 2012). Feldman said Monday that the trial and its historic damages award should “prompt us to ask if we’ve gone too far” in the intellectual property system.

“No one has paid much attention to design patents and ‘trade dress’ until now, but when they pop up with billion-dollar price tags, we may want to rethink whether [that] makes sense,” she added. “It will be interesting to see if any of the appellate courts take a close look” at the design and trade dress issues.

Feldman called it “a resounding win for Apple” that will make other companies reluctant to challenge the company with similar products.

And therein lies the problem, according to Keith Sawyer, who blogs about creativity and innovation.

“It’s too easy to get a patent and too easy to defend a patent,” Sawyer wrote Monday. “This blocks innovation because . . . [it] is incremental; every new step forward always builds on a long chain of prior innovations. If any one link in the chain is allowed to block all future enhancements, then innovation stops.”