On August 24, 2012, a jury on the Apple v. Samsung case returned a verdict in the long, legal battle over several Apple patents relating to Apple’s iPhone and iPad. The jury submitted a verdict awarding Apple 1.05 billion dollars as damages that must be compensated by Samsung. This case brought these two incentives of patent protection in light of design patent protection.
Unlike utility patents, design patents only protect the ornamental design for an article of manufacture. They do not cover structural or functional elements. In fact, design patents are invalid where the design is dictated by function. Additionally, rather than having a series of written claims at the end of the patent, the figures and, at times, the description, are used to define a single claim to which the design patent is directed.
The infringement analysis for design patents is similar to utility patents—the first step is construing the patented design. However, design patents protect only ornamental designs.
Second step is, ordinary observer test. Under that test, an ordinary observer compares the differences in the patented design and the accused product in view of the prior art to determine if they are substantially the same such as to deceive the ordinary observer into purchasing one believing it to be the other.
THE APPLE V. SAMSUNG CASE
In regards to the Apple v. Samsung case, one of the patents in controversy, the D’677 patent, protects the design of the iPhone. First, the D’677 patent protects the surface design: which consists of a highly polished, reflective surface that covers over the entire front face of the phone, and is considered to be an article of manufacture. In addition, the D’677 patent applies to the shape or configuration of the phone’s reflective surface, which consists of a large rectangular display occupying most of the phone’s front face. The corners of the phone are rounded. The latter part could be considered the shape and configuration of the whole part of the phone. Therefore, design patent D’677 covers both aspects of a design patents.
Samsung claimed that, Apple’s D’677 patent was invalid because it was not patentable in light of the prior design in Japanese Patent No. 1,241,638.43 The court concluded that the ′638 design was sufficiently different from the D′677 patent, because it would not have been obvious to a designer to adopt certain features contained in the D’677 patent. The jury found that none of Apple’s patents were invalid.
Infringement under Design Patent
An infringement of a design patent includes, “during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colourable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colourable limitation has been applied shall be liable to the owner to the extent of his total profit. Infringement does not require absolute identity between the patented design and the accused design. The patentee must prove, however, that the accused design appropriates aspects or features in the patent design that distinguishes it from the prior art.
In other words, in order for an infringement claim to be a valid infringement claim the infringer cannot include only a part of the patented design. Instead, the infringer must incorporate the overall design. Furthermore, it must be the claimed elements of the design, not the commercial embodiment of the design.
In the battle between Apple and Samsung, the jury found that Samsung’s smart phones had not passed the Ordinary Observer Test, and that a consumer would find no difference in the designs of Apple’s D’677 patent and Samsung’s smart phones. Therefore, the jury concluded that that Samsung’s smartphones had infringed on Apple’s D’677 patent
The case determines the power of patent holders to obtain protection, and how they can use it to maintain advantage over competitors. In essence, Samsung’s argument that Apple has now used the courts to shut down competitors that tried to advance upon functional designs that result in more competition and better products can be construed as a partially valid theory. The case does not directly impact any particular design patent law or overrule a prior decision but it speaks more to patents’ influence over the products the public uses every single day. In the current case, Apple has several utility and design patents in addition to other related causes of action. The fact that Apple can take rectangular corners and round corners and use it to stop a competitor from selling a smart phone that consumers around America use, demonstrates the potential power of such protection. This not only makes competitors reluctant to risk a negative reputation and money in extended litigation over a controversial design, but it can inhibit new start-ups to create competing designs in fear of litigation from Apple or any other large corporation with several thousands of patents and millions of dollars allocated just for litigation
 Apple, Inc. v. Samsung Electronics Co., Ltd., 678 F.3d 1314, 1317 (Fed. Cir. 2012)
 35 U.S.C. § 171. See also OddzOn Prods. Inc. v. Just Toys Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997).
 OddzOn Prods. Inc. v. Just Toys Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997); Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1188 (Fed. Cir. 1988).
 Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995).
 Gorham Co. v. White, 81 U.S. 511, 528 (1871).
 Alan F., Jury Verdict Form from Apple v. Samsung Patent Trial Is Released, PHONE ARENA
 Supra note 1
 35 U.S.C.A §289 (2010).
 Robert S. Katz, Infringement of Design Patents in the United States, 10 U.BALT.INTELL.PROP.L.J.117 (2002)
 ContessaFood Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1378-79, 1382 (Fed. Cir. 2002).
 Payless Shoesource, Inc. v. Reebok Int’l, Ltd., 998 F.2d 985, 990 (Fed. Cir. 1993)
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