Something to sip on….Spoons and the latest spat between Apple and Samsung

The latest spat between Apple and Samsung deals with the amount of damages that would be awarded on the basis of a design patent.  It has been over 120 years since the last time the US Supreme Court (SCOTUS) reviewed a design patent issue.  Design patents cover the ornamental or aesthetic aspects of a product versus the functional or utilitarian aspects of a product that is typically covered in a Utility Patent.  The prior design patent case, Gorham v. White, involved a patent obtained by Gorham in 1861 covering the ornamental aspects of a spoon handle.  The design patent owner Gorham won their case.  In this instance regarding damages during oral argument before SCOTUS, the attorneys for Apple argued that since their design patents covered the overall look of their phones, they should get damages based on the sale of the entire Samsung phone.  Furthermore, if people are buying the phone based on its appearance, all the profits should be going to the designer.  Attorneys for Samsung countered by distinguishing the Gorham case, by stating that a patented design might be the essential feature of a spoon, but that would not necessarily be true for smartphones which contain many other features that give them functionality unrelated to the design.  Samsung’s Attorneys further argued that the main selling point for spoons are the design of the handle and nobody cares about the sipping cup of the spoon.  So does nobody care about what the rest of the phone does?  Does this last argument hold water?  We’ll see what SCOTUS has to say within the next few months when they issue their opinion.