Apple and Samsung reach Supreme Court in patent row

This carpet design from the 1800s has a direct connection to the row in Supreme Court on Tuesday

To find context ahead of Tuesday's showdown between Apple and Samsung in the US Supreme Court, you need to go back over a century to a row over some rather attractive carpets.

It's 1885, and John and James Dobson stand accused of nicking designs from other carpet makers and selling them off as their own. 

A couple of companies, Hartford Carpet and Bigelow Carpet, were so incensed they took the Dobsons all the way to the highest court in the land.

The firms were quite right to be upset, the Supreme Court agreed, but then it got more complicated. The court hit a stumbling block over the amount of money the firms deserved in damages.

The issue was that the judges couldn't determine precisely how valuable design was when compared with everything else that goes into making a nice carpet. A lovely design on a poor quality rug wouldn't sell, after all.

And so it meant the companies got just six cents each. Which, even back then, was pitiful. Nominal damages.

This caught the eye of Connecticut senator Orville Platt who, pressured by worried carpet makers, lobbied Congress to amend the Patent Act to make sure design patents were given more weight. By 1887, those changes were written into law. 

iPhone row

Senator Platt was looking to protect the interests of a thriving local industry - and he certainly achieved that. 

But he also put in place the framework that means, 129 years on, Samsung and Apple find themselves arguing over the very same principle. 

In 2011 Apple accused Samsung of being the Dobson brothers of the smartphone world, pinching three bits of iPhone design and using them in several Samsung devices.

Apple successfully argued that Samsung stole elements of the iPhone design

Specifically, Apple argued that Samsung copied the device's round corners, its bezel, and the app grid of icons when the phone is switched on.

Last year a court agreed with Apple, and so the amendment backed by carpet saviour Senator Platt was put into play. 

The amendment that said if a company is found to have infringed a design patent, it must pay out all of the profit it made in damages or $250, whichever amount is greater.

It'll come as no surprise that Samsung had to do the former. The profit on the devices was deemed to be $548m (£362m), and in December the court ordered Samsung to pay that amount to Apple in full, which it did. But Samsung now feels it should be given back at least $399m.

Form over function

Several thousand cases are referred to the Supreme Court of the United States every year, but it actually only hears fewer than 100. The cases are picked carefully and as a last resort - if there is no acceptable precedent in law, that's when the Supreme Court, or SCOTUS, if you will, steps in.

Clearly, the decision over the complexity of carpet won't cut it in today's modern world. It didn't even cut it in 1885.

Samsung is hoping to reduce the damages by several hundred million

And so the judges have taken this on to set a new precedent over punishment for infringing a design patent. It's not considering if Samsung is guilty of copying Apple (it did), but rather how much money Apple is entitled to receive.

The question the judges are essentially asking is: why do people buy a certain phone? Is it because of how it looks, or how it functions?

Samsung says it's mostly the latter, and therefore the damages should be a lot lower as there's an awful lot more work that goes into a phone beyond its aesthetics.

Apple takes the opposite view - it's the iconic design of the iPhone that had if flying off the shelves, it argues, and so if Samsung stole that design then that profit money should surely be Apple's. 

Apple's gamble

We won't know the Supreme Court's decision until June 2017. But speculation among those in the know sides with Samsung in that it makes the most sense that Samsung should pay some damages, but not the entirety of its profit on the device sales.

"That would be the understanding the majority of law professors would advocate for," suggested Prof Andrea Matwyshyn from Northwestern University in Boston.

She said while design of, say, a carpet could be considered the be-all-and-end-all of its success, a smartphone is a far more complex device. Design is important, but not the only factor.

One of the other stolen carpet designs from 1885 - but will Supreme Court update its view on design patents?

Samsung has had support from its technology peers - most notably Facebook and Google parent company Alphabet.

Apple has backing too - Calvin Klein has lent its support, as have Adidas and jewellery maker Tiffany and Co. 

The fact that Apple is pushing for full damages is a strategy that suggests extreme confidence in its ability to stay ahead of the curve in technology, Prof Matwyshyn said.

"It is a corporate decision that should be approached with thoughtfulness and caution, because the future of innovation is always uncertain.

"Tomorrow's devices may bring an unanticipated set of legal challenges.

"It's possible they view their own corporate culture so forward looking that they think it's more likely their designs will be used by others, rather than ever being on the defendant side."

Next steps

Tuesday's hearing will be 90 minutes long - each side will have a chance to put forth its view, and the US Justice Department will also have its say. 

It's expected that the Justice Department's view will be that the law should be interpreted with greater flexibility, with more power given to lower courts to determine whether all of the profit should be awarded as damages.

That should be taken on a case-by-case basis that allows regional court judges to consider how integral certain design features are to the product as a whole. 

If the Supreme Court accepts Samsung's appeal, the matter will be referred down to a federal court to determine what the damages should be - and potentially how cases like this will be dealt with in future.

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