In Apple patent spat, Samsung rides a new wave of support

Facebook, Google and Dell are among many urging the Supreme Court to weigh in. High damages in patent cases, they say, could hurt everyone from large tech companies to farmers and consumers.

Shara Tibken Former managing editor
Shara Tibken was a managing editor at CNET News, overseeing a team covering tech policy, EU tech, mobile and the digital divide. She previously covered mobile as a senior reporter at CNET and also wrote for Dow Jones Newswires and The Wall Street Journal. Shara is a native Midwesterner who still prefers "pop" over "soda."
Shara Tibken
5 min read

Apple and Samsung have been battling over patents since 2012.


Samsung's got some new friends in its legal battle against Apple -- including farmers, African American small businesses and an electronics retailer.

Legal experts, nonprofit organizations and technology companies have filed amicus, or "friend of the court," briefs in support of Samsung, urging the US Supreme Court to consider the patent-infringement case. They want the nation's highest court to better define design patents and limit the damages that can be awarded. And they're using Apple v. Samsung as the case that hopefully gets the federal government to enact patent reforms, preventing so-called patent trolls from cashing in on intellectual property.

"This is a very important subject, and...it matters tremendously to our millions of customers," Lee Cheng, chief legal officer of online electronics retailer Newegg, said in an interview. His company submitted a brief along with Dell, eBay, Facebook, Google, Hewlett Packard Enterprise, HP, Vizio and software maker Pegasystems that said if the US doesn't change its patent laws, the result ultimately will be less choice and higher cost for consumers.

"We are very strong supporters of the patent system," Cheng said. "That said, there's a huge and tremendous amount of abuse."

Samsung declined to comment about the amicus briefs. Apple did not immediately respond to a request for comment.

The South Korean company in mid-December filed a request with the US Supreme Court, asking it to re-examine the decisions made in the patent infringement lawsuits pitting Samsung against Apple. The trial, which ended in 2012, cast a bright light on the designs behind some of the most popular smartphones, and it resulted in Samsung ultimately having to pay Apple $548 million.

Samsung's infringing devices (pictures)

See all photos

In all, six amicus briefs have been filed with the Supreme Court in support of Samsung. Along with Newegg and some of Silicon Valley's biggest tech companies, other groups supporting Samsung included law professors from Stanford and Georgetown; nonprofit digital rights groups like Public Knowledge and the Electronic Frontier Foundation; and advocacy groups such as the Computer & Communications Industry Association, the Hispanic Leadership Fund and the National Black Chamber of Commerce.

The federal circuit's interpretation of patent rules "is greatly detrimental to the patent system and innovation in general, due to the potentially enormous disparity between damages award and patent value that the rule invites," the brief filed by Public Knowledge and Electronic Frontier Foundation said. The two nonprofits are focused on preserving the openness of the Internet and protecting consumers in the digital world, respectively.

If the Supreme Court decides to take the case, its eventual decision could have a ripple effect on the technology industry and the kinds of gadgets you'll be able to buy. Samsung and some of Silicon Valley's biggest players have argued that the lower-court ruling as it stands may have a "devastating impact" on the introduction of new products because of a heightened fear of legal challenges. Apple said all along that it was doing what was necessary to defend its intellectual property and the value of its blockbuster iPhone franchise.

It's unclear whether the Supreme Court will consider the case. It hasn't looked at a suit involving design patents since the 1800s. Those cases involved a spoon handle, a carpet, a saddle and a rug. Since that time, a lot has changed, including the introduction of electronic devices like the ones Apple and Samsung make. Samsung wants the Supreme Court to give guidance on what's covered by design patents and what damages can be collected.

'Exorbitant' damages

Rebecca Tushnet, a law professor at Georgetown Law, wrote one of the new amicus briefs along with 36 other intellectual-property law professors. The group also included Stanford Law School professor Mark Lemley, Notre Dame Law Professor Mark McKenna and New York University School of Law professor Katherine Strandburg. In it, the professors argue current design patent law hurts innovation and can lead to extremely high damages. If the law isn't better defined, it could lead to more lawsuits.

"We definitely are seeing lots and lots of cases already being filed," Tushnet said in an interview. "If the court doesn't hear it, we will see more."

The Computer & Communications Industry Association, an industry group that represents computer, communications and Internet companies, said in a brief that if the lower court's interpretation of design patent damages stands, "CCIA's member companies could be faced with potentially massive exposure to attack using design patents."

Another brief -- from Systems Inc., a Wisconsin-based maker of loading dock equipment -- said the federal circuit's decision in Apple v. Samsung is being "applied to the substantial detriment of numerous other litigants including Systems." Systems is involved in a design patent dispute with Nordock, and a jury limited the amount of damages Systems owed Nordock. But a federal circuit appeals court ordered a new damages trial after saying the jury decision didn't align with the court's findings in Apple v. Samsung.

Apple v. Samsung 2014: The infringing devices (pictures)

See all photos

"Should this court accept Samsung's petition and alter the Federal Circuit's decision in this matter, that action will have a direct impact on the outcome of the Systems v. Nordock matter, and may completely avoid an unnecessary re-trial," Systems said in its brief.

In the sixth brief, the Hispanic Leadership Fund, the National Black Chamber of Commerce and the National Grange of the Order of the Patrons of Husbandry banded together to argue that "the outcome of this case could adversely impact the social and economic welfare of the communities they represent for years to come." The groups represent Hispanic communities, African American entrepreneurs and farmers/ranchers, respectively.

"Entrepreneurs from these communities depend upon the ability to fairly compete in open, competitive markets in order to overcome historic difficulties that have hampered their chances of succeeding in the American marketplace," the brief said. And they often rely on smartphones -- the devices in question in Apple v. Samsung -- as their way to access the Internet.

The group added that the "exorbitant" damages permitted in design patent cases risks making Internet access unaffordable and "will make it harder for minority and rural entrepreneurs to create and develop businesses, thereby hindering their ability to empower themselves and their communities."

This isn't the first time law experts and technology companies have voiced support for Samsung. Some of Silicon Valley's biggest companies -- including Google, Facebook, eBay, Dell and Hewlett-Packard -- together filed a brief with the federal court in July that argued in Samsung's favor. They said that Apple's victory in 2012 against Samsung covered only minor technologies and that if the ruling was upheld, the infringement could hurt companies attempting to develop "useful modern technologies."