AIGA executive director on design patents and Samsung’s Supreme Court appeal

On Monday, December 14, Samsung filed an appeal to the Supreme Court arguing that the legal framework for design patents is outdated for the modern design economy. The case, if heard, could have far-reaching implications for design patents, which cover how a product looks, and the sort of financial penalties allowed under the law. Design patents are far less common than utility patents, which cover how a product functions.

The design patents questioned in this case are Apple’s claim to the iPhone’s rounded corners, flat screen and user interface. The issue, however, if not in the specifics but in the broader question of what attributes of design can be protected without stifling creativity and innovation.

In the United States the legal standard for infringement of a design patent centers on the “ordinary observer” test—whether that observer would be “deceived into thinking that the accused design was the same as the patented design.” Typically the damage awards represent the assumed loss of profit from the substitution sales of products that have encroached on a patented design.

The Court is not expected to decide whether to take up the case until February. Even if it does not take up this case, it is likely that design patents and their criteria will require some judicial review or legal refinement in the near future when user experience represents so much of a product’s competitiveness.

​AIGA will continue to monitor the implications of these legal issues.​

About the Author: Richard Grefé is the director emeritus of AIGA, the professional association for design, the oldest and largest professional association of designers in the United States representing the interests of 27,000 designers working in a variety of communication media and dimensions, ranging from type and book designers to new media and experience designers. AIGA, o ver twenty years under Ric’s aegis, has become a leading advocate for the value of designing, as a way of thinking and as a means of creating strategic value for business, the civic realm and social change. Currently he is teaching “Human-centered designn for social change” at Wesleyan University. Ric earned a BA from Dartmouth College in economics, worked in intelligence in Asia, reported from the Bronx County Courthouse for AP, wrote for Time magazine on business and the economy and then earned an MBA from Stanford Graduate School of Business. Following an early career in urban design and public policy consulting, Ric managed the association responsible for strategic planning and legislative advocacy for public television and led a think tank on the future of public television and radio in Washington.