A second Apple-Samsung case could cap the patent reformation
Samsung is thus seeking a return to the Supreme Court, having petitioned for cert on March 10. Getting the High Court to hear your case is always hard. It only takes a small minority of those who ask, and the Solicitor General just advised against taking the case. The Court also just decided a big case with the same two litigants in December.
On the other hand, the Court has been keen to clean up patent law over the past few years, and its 8-0 decision in December reveals a likeness of mind to further the “patent reformation,” as I’ve called it. The High Court may want to clarify some of these utility patent questions like it did for design patents in the last case, as well as resolve the Federal Circuit’s highly unusual en banc behavior, lest that court make it a habit. The strength of the three dissents by the 3-0 panel also improves the chances for cert.
">As the Supreme Court kicks off a new year, it may umpire yet another skirmish between two familiar foes – Apple and Samsung. If it decides to take the latest case, the long series of Apple-Samsung disputes could be the capstone of an historic and much-needed reform of intellectual property law.
Recall that after years of litigation across a range of smartphone patent disputes, the Supreme Court in late 2016 sided with Samsung, 8-0, overturning a large $399-million award. The court said that an 1887 law was being misapplied for complex modern products. Because today’s pocket computers contain hundreds of thousands of patented technologies, the high court said Samsung should not have to hand over the “total profits” from a line of smartphones merely because it may have infringed one minor Apple patent. In other words, citing a common analogy, should Ford have to pay Chevy the total profits from all its F-150 trucks because it may have infringed the appearance of a Chevy cup-holder? The Supreme Court remanded the case to the lower federal court, asking it to devise a narrower and more realistic definition of “article of manufacture,” and Samsung’s request for a retrial has been granted by the Northern District of California Court.
The new trial is a step in the right direction, but the new proposed definition of "article of manufacture" is still overly complicated and should be further refined to create certainty for innovators, businesses, and investors.
While the lower court sorts out the first case, however, Samsung is waiting to hear whether the Supreme Court will hear a second case. Case No. 2 concerns substantive questions of patent validity and infringement and also an unusual procedural question – each of which could have important implications for IP law. In case No. 2, moreover, the questions concern utility patents, or those that govern functionality, where case No. 1 concerned design patents, which cover appearance, or “look and feel.”
In case No. 2, Apple initially prevailed 2-1 in its charge that Samsung infringed three patents. Upon appeal, however, the Federal Circuit reversed. It ruled 3-0 for Samsung – finding that patent 1 was not in fact infringed and that patents 2 and 3 are invalid because they are obvious. One of the biggest problems in patent law is that over the past few decades far too many patents were issued for inconsequential ideas. The result was an explosion of litigation over flimsy claims, and over the past few years the courts and Congress have been trying to fix this problem. It seems clear not all courts have gotten the message, however.
After Samsung’s 3-0 win, Apple requested en banc review by the entire court, but the parties did not hear from the court for six months. Until, suddenly, an enbancorder was issued overturning the 3-0 ruling, without any hearing, briefs, or notice. Normally, a court will first announce it has taken a case en banc (or not), and later issue an opinion. In patent cases especially, there is usually further briefing and often a hearing. Court watchers were thus surprised by the unusual procedure (or lack thereof). All three judges from the 3-0 decision dissented with gusto, questioning the en banc review’s substance and procedural irregularities.
Samsung is thus seeking a return to the Supreme Court, having petitioned for cert on March 10. Getting the High Court to hear your case is always hard. It only takes a small minority of those who ask, and the Solicitor General just advised against taking the case. The Court also just decided a big case with the same two litigants in December.
On the other hand, the Court has been keen to clean up patent law over the past few years, and its 8-0 decision in December reveals a likeness of mind to further the “patent reformation,” as I’ve called it. The High Court may want to clarify some of these utility patent questions like it did for design patents in the last case, as well as resolve the Federal Circuit’s highly unusual en banc behavior, lest that court make it a habit. The strength of the three dissents by the 3-0 panel also improves the chances for cert.
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