Here’s the part of Apple v. Samsung that got remanded

Patentstreit zwischen Apple und Samsung
ILLUSTRATION - Eine Frau hält am 30.03.2014 in Hamburg ein Apple iPhone 4s (r) und ein Samsung Galaxy S3 hoch. Im Patentstreit zwischen Apple und Samsung startet am 31.03.2014 der zweite Prozess der Rivalen in Kalifornien (USA). Photo by: Marcus Brandt/picture-alliance/dpa/AP Images
Photograph by Marcus Brandt — picture-alliance/dpa/AP

Rectangles with rounded corners.

It sounded ridiculous, but for many Samsung partisans that’s what Apple’s first infringement suit — the one that resulted in a $1.05 billion verdict (later reduced to $930 million) — was all about.

And that’s the part of the jury’s verdict that the U.S. Court of Appeals for the Federal Circuit threw out Monday. (AppleInsider has the decision.)

In legal terms, the issue was “trade dress dilution.” Trade dress refers to a product’s physical appearance — its size, shape, color, design and texture. Dilution comes in two forms: blurring and tarnishment.

Apple claimed Samsung’s smartphones looked so much like Apple’s that customers were confused and that the iPhone’s reputation was thereby tarnished. The jury agreed.

These judges disagreed. Apparently courts over the years have given competing products wide latitude when it comes to things like rectangles and rounded corners. There’s a high bar for trade dress dilution.

So that part of the jury’s verdict got remanded — sent back to the lower court.

What does this do to those $930 million in damages? That’s going to be a bear to sort out, says Florian Mueller, who covered the Apple v. Samsung extensively on his FOSS Patents website.

Monday’s ruling affects about a third of the damage award: $380 million. And two out of three aspects of that award — covering Apple’s design and utility patents — were affirmed

There’s no way to recalculate damages automatically, says Mueller, because the two juries that have heard this part of the case ruled on damages per product, not per intellectual property right.

“I guess they need a retrial on all products found to have infringed any trade dress,” says Mueller.

That list of products is a flash from the past: Fascinate, Galaxy S (i9000), Galaxy S 4G, Galaxy S II Showcase (i500), Mesmerize, and Vibrant.

Samsung hasn’t sold any of them for years.

Follow Philip Elmer-DeWitt on Twitter at @philiped. Read his Apple (AAPL) coverage at or subscribe via his RSS feed.

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