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Kathleen Sullivan, Quinn Emanuel, Urquhart & Sullivan partnerKathleen Sullivan, Quinn Emanuel, Urquhart & Sullivan partner (Jason Doiy / The Recorder)

For the first time in 130 years, the U.S. Supreme Court is going to weigh in on design patent damages. The timing couldn’t be worse for Apple Inc.

The high court agreed Monday to review Apple’s epic battle with Samsung Electronics Co., specifically to decide whether the remedy for design patent infringement is disgorgement of all profits generated by the product. Samsung contends the 1887 statute on design damages—inspired by a Supreme Court decision on rug design—is no longer relevant in a world of complex electronic devices in which design may be one of hundreds of patented features.

The cert grant puts directly at risk the $399 million awarded for Samsung’s copying of the iPhone’s distinctive rounded corners and graphical interface with colorful icons. It also jeopardizes an additional $100-plus million awarded to Apple based largely on infringement of its “pinch-to-zoom” utility patent.

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