Apple’s secret weapon by Roger Parloff @FortuneMagazine June 26, 2012, 9:11 AM EDT E-mail Tweet Facebook Google Plus Linkedin Share icons UPDATE: On Tuesday evening, June 26, U.S. District Judge Lucy Koh issued a preliminary injunction barring Samsung from selling its Galaxy Tab 10.1 tablet computer in the U.S. due to its infringement of the Apple iPad design patent. Though Judge Koh originally scheduled a hearing Friday on that question, she changed her mind and decided that “another hearing on these issues is unnecessary.” Note: This story was updated at 9:46AM with comments from a Samsung spokesperson. On Friday, Apple will ask a federal judge in San Jose, California to yank a popular model of Samsung tablet computer off the market for allegedly copying its iPad design. Given the central part played by Apple in the Silicon Valley industrial design renaissance, it is fitting that the company’s demand also marks the coming of age of a murky form of intellectual property that many may have never even realized existed: the design patent. Unlike the much more common utility patent, which lasts for 20 years from application and covers the way something works, a design patent lasts for 14 years from issuance and covers the way something looks, explains Christopher V. Carani of Chicago’s McAndrews, Held & Malloy, an attorney who practices this burgeoning black art. (Apple’s AAPL patent suit against Motorola GOOG in Chicago, which was surprisingly dismissed Friday by Judge Richard Posner, acting as a district judge, involved only conventional utility patents.) The necessarily subjective test for infringement of design patents is simply whether the “overall impression” of the accused product looks “substantially the same” as the patented design in the “eyes of an ordinary observer.” The design must also be “ornamental” — that is, not “dictated by” function. In the Samsung case, the iPad design patent at issue (on which Steve Jobs is listed as a co-inventor) is just five pages long. Four and a half of those consist of sketches, from different angles, of an object that, to the untrained eye, looks like an unopened TV dinner. The crucial “claim” is just one sentence: “We claim the ornamental design for an electronic device, substantially as shown” — referring to the sketches. In those, solid lines show what’s being patented, while dotted lines show incidental features. Like the proverbial Jackson Pollock painting, your kid could have drawn these. On the other hand, Apple invests fortunes to come up with its minimalist masterpieces, and consumers will move heaven and earth to possess one, so is it fair to let Johnny-come-lately’s just rip Apple off? In May, a panel of the U.S. Circuit Court of Appeals for the Federal Circuit preliminarily ruled that Apple’s iPad design patent, known as D504,889, was valid, notwithstanding the existence of at least two roughly similar designs for earlier tablets—a 1994 Knight-Ridder prototype and the 2002 HP-Compaq TC1000. Circuit Judge William C. Bryson, writing for the panel, then ruled that the iPad design was likely infringed by Samsung’s popular Galaxy 10.1 Tab, which came out in June 2011. He ordered the case sent back to U.S. District Judge Lucy Koh to decide whether to pull the Samsung tablet from shelves immediately or wait till after she has presided over a full jury trial, currently scheduled to start July 30. That preliminary injunction hearing is now set for Friday. In the same ruling Judge Bryson also preliminarily approved the validity of two of Apple’s (and Jobs’s, as co-inventor) iPhone design patents and found that they, too, were likely infringed by Samsung’s Galaxy S 4G and Infuse 4G smartphones—though Bryson affirmed Judge Koh’s earlier decision to order no pretrial embargo on those devices. Apple declined comment on the suit. A Samsung spokesperson provided Fortune with a statement which said in part, “Apple sought a preliminary injunction of Samsung’s GALAXY Tab 10.1 based on a single design patent that addressed just one aspect of the product’s overall design. Should Apple continue to make legal claims based on such a generic design patent, design innovation and progress in the industry could be restricted.” Though the U.S. Supreme Court has not heard a design patent case since 1871 — that one involved the ornamentation on some pre-Civil War silver flatware handles — it might be time for a fresh look. While the number of design patents issued annually across all industries has increased only incrementally over the past decade — cumulatively, about 26% — tech design patents have shot through the roof. While Apple obtained just 10 of them in 2001, when Samsung acquired 8, last year Apple hauled in 123 (an 1100% increase), while Samsung harvested 333 (a 4000% increase).