‘Law of Look and Feel’ article, by Professor Lee and Associate Dean Sunder, chosen for best-of anthology
The protracted Apple v. Samsung patent case and its many related lawsuits and countersuits illustrate the seemingly bottomless resources of two technology giants locked in battle over valuable smartphone and tablet design elements.
For UC Davis School of Law scholars Peter Lee and Madhavi Sunder, the Apple-Samsung fight also illuminated design patent as an area of law.
In 2012, a San Jose jury ordered Samsung to pay Apple $1 billion for infringing on Apple’s patents on its iPhone and iPad, including one covering the devices’ rounded corners. It was the first verdict of many in the ongoing Apple-Samsung patent war.
“We were really intrigued by the jury’s verdict,” said Sunder, Senior Associate Dean for Academic Affairs and an intellectual property scholar. “This was a revolutionary decision with a huge verdict based on design patents, which was an area of intellectual-property law that had not gotten much attention up until that time.”
After learning of the original Apple verdict, Sunder asked Lee - “our patent expert,” she said - what he knew about design patents. Lee, a professor specializing in patents’ applications to technology and innovation, told her that at that point, in 2012, he devoted only about 10 minutes per semester to design in his patent law class. There had yet to be a comprehensive scholarly examination of design patent law.
“We were struck by how this area of law had hit the world stage, but we really didn’t have much academic work on it,” Sunder said. “So then Peter and I wrote two pieces.”
They presented the first at a Stanford Law School symposium. The second, far more expansive piece, “The Law of Look and Feel,” appeared in the March 2017 edition of the Southern California Law Review (Vol. 90, No. 3).
“The Law of Look and Feel” was just selected for inclusion in the 2018 edition of the Intellectual Property Law Review, an anthology published by Thomson Reuters (West) that gathers law-journal articles judged to be the year’s best.
“It is very gratifying that the community has recognized our work as influential and impactful,” Lee said. “Hopefully, it will shine more light on design in general, and design patents in particular, as an area of study.”
Apple’s $1 billion award was reduced to $400 million before Samsung appealed to the Supreme Court, which threw out the award in 2016 and sent the case back to federal court in San Jose, where a jury on May 24 of this year ordered Samsung to pay Apple $539 million. The Supreme Court also ruled against Samsung in 2017, refusing to hear its appeal of a $120 million verdict favoring Apple in a separate case. Samsung and Apple have traded wins in foreign courts.
If the companies’ vast financial resources helped fuel this legal marathon, so did the nature of current design law, which, as “The Law of Look and Feel” points out, is “confused and confusing.”
“The main areas of IP - patents, copyrights, trademarks - they all in some fashion protected design,” Lee said. “But it is somewhat problematic that they don’t take a very coherent approach. So the same thing, a smart phone, can be subject to several different IP regimes, all of which protect different facets of design.”
The article offers “prescriptions for how to reform design patent law to be more in line, and to recognize design is special,” Sunder said.
Design “is style and trends, and everybody wants to copy it,” Sunder continued. “We identify design as zeitgeist, the style of the day, the look and feel of the day. We can’t treat it like any other commodity.”