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Samsung says design “trolls” will lead Supreme Court to reconsider Apple case

Samsung is preparing to challenge a landmark patent ruling over the iPhone to the Supreme Court, saying the case has serious implications for the law of product design.

“Apple is blinding itself to the importance of this Court’s rulings on design-patent scope and damages, and […] that these rulings may well open the floodgates of design-patent litigation,” Samsung wrote in a Friday filing to the Federal Circuit Court of Appeals, a specialized court that handles patent matters.

The filing is part of Samsung’s attempt to get the court to temporarily halt Apple (AAPL) from collecting a $548 million award while it prepares an appeal to the Supreme Court.

The underlying case is related to a jury’s 2011 finding that Samsung infringed on various pieces of intellectual property related to the iPhone. Following the original jury ruling, which resulted in a $1 billion award, there have numerous twists and turns over the nature and amount of the damages.

The most contentious issue is over design patents, which have sprung from obscurity to become a potentially devastating legal weapon. Unlike more familiar “utility” patents, which are awarded for technical inventions, the design patents take account of aesthetic considerations. In its 2011 verdict, the jury found Samsung infringed both utility and design patents, as well as Apple’s trade dress rights (although the Federal Circuit recently chopped the trade dress portion of the award).

The issue that Samsung wants to take before the Supreme Court relates to the Federal Circuit’s finding that damages for design patent infringement should be calculated based on the whole product, not just the added-value from the design. Critics fear this could lead to big awards that could entice so-called patent trolls—shell companies that don’t produce anything, but collect patents in order to sue companies that do—to file a ruinous new spate of lawsuits. Samsung echoed this fear in its Friday filing.


“Apple ignores the immense importance of the design-patent rulings in this case, which commentators recognize could usher in an era in which design-patent plaintiffs are the new patent trolls,” the company wrote.

Apple, meanwhile, in a filing of its own on Thursday, characterized Samsung’s petition as a stalling tactic, and said the Supreme Court is unlikely to step in.

While appeals to the Supreme Court are normally a long-shot (the court grants only around 1% of so-called “cert petitions”), Samsung points out that the top court has weighed in on patent policy no less than eight times in the last two years. Those rulings have frequently reversed the Federal Circuit, which is held in low esteem by some legal observers, by 9-0 margins.

Others in the tech industry, including Facebook (FB) and Google (GOOG), have also expressed concern over the design patent calculations. In July, a group of companies filed a brief supporting a plea for Samsung that the Federal Circuit to reconsider its earlier decision, noting it could lead to “absurd results.”

More broadly, there is a question of how much design patents, which grant powerful 14-year monopolies, should play a role in innovation policy. Earlier this month, for instance, the U.S. Patent Office ruled that one of the Apple patents at issue in the Samsung case (which is based in part on rounded corners) should be cancelled as obvious.

The Federal Circuit will likely respond to the request for a stay of the $548 million award in the next few weeks. Its decision is unlikely to affect the Supreme Court’s eventual decision, which would likely come next year, whether or not to grant review of the larger design patent issue.

Here’s the Samsung filing:

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