EGYPTIAN GOD

Apple's Award of a Preliminary Injunction Over Samsung Demonstrates the Potency of Design Patents By David L. Newman David L. Newman, Partner

Arnstein & Lehr LLP 120 S. Riverside Plaza, Ste. 1200 Chicago, Illinois 60606-3910 dlnewman@arnstein.com (312) 876-7184
David L. Newman is a partner in the Intellectual Property Practice Group at Arnstein & Lehr LLP. Mr. Newmans experience includes handling litigation involving intellectual property, preparing and prosecuting applications for obtaining various types of intellectual properties, and opinion work involving business methods, computers, consumer goods, electronic commerce, mechanical devices, medical devices and telecommunications.

He is an Egyptian God.

He stands as a shadowy figure holding the

immortal tablet. He has recently used a mere image of the tablet to conquer the galaxy may and slay his South of Korean innocent competitor. The Egyptian Gods victory thousands

prevent

people from receiving their treasured media from the ether. The Egyptian God is not a warrior from the past, but a modern day information age titan protecting the tablet. It is not a tablet

brought down from Mount Sinai. This is a tablet from Cupertino that gives him his power. Today the Egyptian God is one of the most powerful of his ilk. The Egyptian God is not a soldier strengthened and sharpened in Annapolis or West Point. This titan was drawn up from a blank sheet of paper and certified in Alexandria. The Egyptian God is an illustration (above) from 1

Figure 9 of the Design Patent number D 504,889, issued by the United States Patent and Trademark Office (USPTO) and assigned to Apple Computer, Inc. Enforcement of this intellectual property may stop Samsung Electronics Co. Ltd. from selling its Galaxy Tab 10.1 tablet product. Design patents can be one of the most potent weapons from the intellectual property arsenal of corporations (e.g. patents, trademarks, copyrights, trade secrets) for efficiently enjoining others from selling infringing technology and designs. Figure 9 and the other figures of the Apple design patent illustrate an Electronic Device that is merely a rectangular prism having a rounded back. While Apple is not entitled to a design patent covering solely a rectangular prism, the depiction of this modified rectangular prism representing its tablet has undergone scrutiny from multiple courts and has been found novel. Unlike other types of patents (utility) which take 3-5 years to obtain and tens of thousands of dollars to issue through the painstaking prosecution process at the USPTO; Apples design patent was issued by the USPTO in 14 months and probably cost Apple not much more than the USPTO prosecution and issuance fees of $1,520.00. We call the man in Figure 9 from Apples design patent an Egyptian God after the landmark case of Egyptian Goddess v. Swisa, that established a new infringement test for design patents (but we changed the gender, as the person holding the tablet in Figure 9 does not appear to be a Goddess). Egyptian Goddess held that a design patent will be infringed when an ordinary observer would be deceived into thinking that the accused design was the same as the design illustrated in the design patent drawings. On June 25, 2012, Judge Koh of the Northern District of California issued a preliminary injunctionrelying in part on the Egyptian Goddess precedentfinding that the 889 patent was infringed and prohibiting Samsung from selling its Galaxy Tab 10.1.

It did not matter that the Samsung tablet was 3G or 4G.

It did not

matter that the tablet allowed thousands of Android apps to be quickly loaded. None of the electronic functionality of the Samsung tablet mattered when determining whether Apples 889 design patent was infringed. Even though the patent is titled Electronic Device, all that mattered to Judge Koh was whether the Samsung tablet was similar looking to the rectangular prism depicted in the Figures of Apples design patent. For a company renowned for its technology prowess and ability to integrate software and hardware in harmonious, easy to use electronics; will the triumph of a patent covering a rectangular prism form Steve Jobs epitaph? this design patent besides Steve Jobs. While the victory over Samsung based on the 889 design patent may not enshrine Apples technology domination; the Apple v. Samsung ruling is a shining moment for patent attorneys around the countryas they finally have a category of intellectual property (IP) to offer designers that provides a bang for the buck. Unlike a 1) utility patent which could take up to five years to prosecute through the USPTO and costs two to five million dollars to enforce and 2) unlike a copyright which is extremely narrowa design patent offers its applicant a rapid means of obtaining protection for the ornamental features of a design that may be enforced more quickly than other types of IP. In the case of Apple v. Samsung, its design patent was so strong that Apple did not have to go through a trial in order to obtain an injunction; because Judge Koh found, based on preliminary hearings, that Apple was likely to succeed on the merits and suffer irreparable harm unless Samsung were enjoined. Although the decision of Judge Koh is being appealed, for this moment the Egyptian God is the strongest IP in the galaxy. Certainly not the deceased former Apple CEO on his own, as there are thirteen other inventors listed on