On October 11, 2016, the U.S. Supreme Court is scheduled to hear oral arguments in the long-running Apple-Samsung litigation. The issue is whether Apple, by virtue of having its designed patents infringed by Samsung, is entitled to all of Samsung’s profits made from the infringing phones (regardless of how much that design contributed to the value of the phone).
This case—in which EFF submitted an amicus brief arguing the award of Samsung’s total profit is improper—is important for many reasons. But one reason stands out: it is trivially easy to get a design patent on trivial designs and, unless the Supreme Court changes the law, that can lead to anything-but-trivial awards in court.
This month’s stupid patent, a design patent, shows just how broken the current system of design patents is. Design patents, unlike the utility patents we usually feature, consist only of a single claim followed by pictures. It is generally the pictures that inform the public as to what is claimed. Importantly, in a design patent only the features drawn in solid lines are claimed. Anything in dotted lines is generally not part of the claim.
U.S. Patent D767,583, issued on September 27, 2016, is a patent on a design for a “display screen portion with graphical user interface.” Here, the claim is to “the ornamental design for a display screen portion with graphical user interface, as shown and described.” As most design patent owners do, the patent also makes clear that “the broken line showing of the display screen in the figure forms no part of the claimed design.” Below is the sole picture from the patent showing the patented design:
The only thing claimed in this design patent are the three rectangles at the top and the square beneath them. This patent is both remarkably trivial and remarkably easy to be accused of infringing. Someone who arranges three rectangles in a row with a square underneath in the way shown in the image is potentially infringing this patent. (The test for whether a design patent is infringed is described in a case called Egyptian Goddess, and is based on what an “ordinary observer” thinks and often involves a comparison to the prior art.) For example, here is an excerpt from the USPTO’s home page, showing three rectangles and something that looks close to a square beneath it:
To be clear, this patent would likely not be infringed if someone arranged three rectangles and a square in a different way (say, if the rectangles were arranged vertically instead of horizontally), and the USPTO itself may not infringe as the prior art would likely narrow this patent significantly.
But even the possibility of a finding of infringement may be enough to cause concern for many people who may be accused of infringing a design patent. That’s because under current law, if someone is found to infringe a design patent, the patent owner can argue that it is entitled to all of the profits from that website.
The Supreme Court has a chance to fix this last issue in the upcoming Apple-Samsung decision. But that won’t change the fact that the Patent Office still issues patents on trivial designs at an alarming rate. This latest patent is just another in a long line of questionable patents.