<img height="1" width="1" alt="" style="display:none" src="https://www.facebook.com/tr?id=1482979731924517&amp;ev=PixelInitialized">

The Litigation Consulting Report

A Patent Renaissance Is Coming, Spurred by Apple's Design Patent Litigation

Posted by Ryan Flax on Wed, Sep 26, 2012 @ 10:00 AM

Find me on:

by Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting 

I believe we may be on the verge of a revolution in patent law.  I spent 12 years practicing patent law, handling both patent litigation and non-litigation work (prosecution, opinions, licensing, counseling, etc.).  I’ve spent the last few weeks paying close attention to, examining, and writing about the just concluded Apple, Inc. v. Samsung Electronics Co. Ltd. trial and the litigation graphics used by both sides – and it’s changed the way I think about U.S. patents and their value.  There are two kinds of patents in the U.S.: utility patents and their step-brother, design patents.  Guess who’s now taking its place at center stage?

design patent litigation graphics appleThe Apple patents found infringed by Samsung were U.S. Utility Patent Numbers 7,469,381 (relating to the screen-bounce-back feature); 7,844,915 (relating to pinch-to-zoom); and 7,864,163 (relating to tap-to-zoom); and Design Patent Numbers D593,087 (design of iPhone back); D604,305 (iPhone home screen design, at right); and D618,677 (design of iPhone front). So, it was an even mix of design and utility patents.  This strikes me as a possible turning point in the history of U.S. patents.

What really interests me are the three design patents enforced and found infringed (and valid) in this case.  It is my sincere belief that if you polled patent attorneys in the United States, you’d find that 9 out of 10 feel (or, if they closely followed the Apple case – felt) that design patents were a bit of a joke.  Sure, design patents have been around for years and have been successfully enforced here and there, but never at this scale of public importance, impact and damages awarded.

Click Here to Download All New Patent Litigation eBook Now

The jury awarded Apple about $1.05 billion, which could be as much as tripled by the Court because the jury found that Samsung’s infringement was willful.  Now Apple is fighting for enhanced damages and a permanent ban on many of Samsung’s products.  There is no way to discern exactly what the contribution of any one of the infringed patents is to this total damages award because the verdict sheet does not provide for this level of detail, but we do know that the three design patents contributed significantly and were each found not invalid.  This presents the turning point I mentioned above.

patent litigation litigation graphics design patentsWhen you consider the goal associated with acquiring patents – to derive value – and the means by which patent holders typically do so – by enforcing those patents in court, the value of design patents becomes clear.  Design patents cover the way something looks and they are infringed when someone applies the patented design or a colorable imitation thereof without permission of the patent holder. 

In court, you must convince a jury of this infringement, which means you must persuade the jurors that the accused infringer has copied your design.  This is a far simpler task (e.g., “doesn’t this product look like this drawing?”) than teaching and persuading a jury that the flash memory circuit in the accused’s processor is the same as or equivalent to the “means for storing data” recited by the claim in your utility patent – get it?  “Easy to explain” adds value.  “Easy to build a story around” adds value.

In a process similar to a trademark or copyright case, juries are going to be called upon to look at a design (e.g., a laptop case, an automobile grill’s shape, a pair of yoga pants tapered leg) and decide whether it infringes a patent.  If you think there’s a need for mock jury testing and litigation graphics in utility patent infringement cases, you can bet their essential in a design patent infringement case – they were in the Apple v. Samsung case.  Your “story” of copying if you’re the patent holder or your “story” about independent design or the long history of similar design in the field if you’re the accused will have to be perfect to win.

In the Apple/Samsung case, a Samsung device called the Fascinate was found to infringe Apple’s ‘305 design patent.  Here’s an image of the Fascinate’s screen display and icons alongside a color image figure from Apple’s design patent:

iphone apple samsung design patent graphics consultants

One of the images above is Apple’s intellectual property (well, maybe both are) and the other is a competitor’s product.  What do you think?  Can you tell which is which?  Do you think the jury could?

Under the law as set forth by the U.S. Court of Appeals for the Federal Circuit in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008), the test for design patent infringement is “whether an ordinary observer, familiar with the prior art, would be deceived into thinking that the accused design was the same as the patented design.”  This is a beautiful test if you’re a plaintiff’s attorney, particularly if you’re Apple’s attorneys.  How much easier is it to simply hold up two pictures in the form of litigation graphics and ask, “Don’t these look the same?”

litigation graphics demonstrative evidence design patent litigationTo win at trial, you have to get through to the people on the jury.  They need to understand you and your case.  In the typical patent case, this is no easy task, but when a design patent is at issue, the pictures can do much of the arguing for you.

This underscores the importance of telling a convincing and persuasive story in court.  Jurors want to reach the right result, so how do you help them do it?

Litigators must be effective at storytelling – jurors must be reached on an emotional level.  To do this, litigators should take time to develop effective litigation graphics and test their story and theme with mock jurors in preparation for trial.  With effective demonstrative evidence, also called litigation graphics, attorneys can teach and argue from their comfort-zone – by lecturing, but the carefully crafted litigation graphics will provide the jurors what they need to really understand what’s being argued and give them a chance to agree.

Most people (remember, jurors are people) are visual learners and do most of their “learning” by watching television or surfing the internet.  In court, litigators must play on this battlefield and with the appropriate weapons.  Design patents, in particular, lend themselves to this advanced style of litigating.

Another asset of the design patent is the type of damages available for infringement.  Unlike damages for infringing a utility patent, the total profits relating to the infringing product can be awarded to the patent holder.  That means, the entirety of infringement profits, rather than just the amount that could be reasonably attributed to the infringement, can be awarded.  In the Apple v. Samsung case, this was a staggering amount; it won’t always be a billion dollars.

I expect to see a dramatic increase in the number of design patents filed-for and in the number of design patents litigated over the next year and beyond.  Patent attorneys should rejoice in this new frontier!

Oh, and one more thing – in the images above, Apple’s patent drawing is the one on the left and Samsung’s product is on the right (or is it the other way?).


More resources related to intellectual property graphics and litigation graphics generally:

Click me

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Courtroom Presentations, Demonstrative Evidence, Patent Litigation, Storytelling, Design Patents, Apple v. Samsung

Confidential A2L Consulting Conflicts Check Form

Join 8,800 Subscribers and Get Notified of New Articles Every Week

Watch Now: Using PowerPoint Litigation Graphics to Win - Webinar

using powerpoint litigation graphics

Free Litigation Webinars - Watch Now

ryan flax a2l litigation consultants webinar recorded

patent litigation webinar free litigation graphics demonstrative

Featured E-Book: The Patent Litigator's Guide to Trial Presentation & Trial Preparation

patent litigation ebook 3rd edition

Featured Free Download: The Complex Civil Litigation Trial Guide

a2l consultants complex civil litigation trial guide download

Free Webinar - Integrating Expert Evidence & Winning Arguments - Watch Anytime.

expert witness teach science complex subject courtroom webinar

Nationally Acclaimed - Voted #1 Jury Research Firm and #1 Demonstrative Evidence Firm in the U.S.

voted best demonstrative evidence consultants

A2L best demonstrative trial graphics consultants
best demonstrative evidence litigation graphics consultants

Download the (Free) Storytelling for Litigators E-Book

describe the image

Considering Using a Trial Technician at Your Next Trial? Download this first.

trial technicians trial technology atlanta houston new york boston virginia

Featured Free Download: Using Science to Prevail in Your Next Case or Controversy

using science to win at trial litigation jury

Featured FREE A2L E-Book: Using Litigation Graphics Persuasively

using litigation graphics trial graphics trial presentation consultants

Free Jury Consulting & Trial Consulting Guidebook for Litigators

jury consulting trial consultants guide

Timelines Appear In Most Trials - Learn how to get the most out of using trial timelines in this ebook

trial timelines graphics consultants litigators

Featured Complimentary eBook - The 100-page Antitrust Litigation Guide

antitrust ebook a2l litigation consultants

Featured Complimentary eBook - Leadership Lessons for Litigators and Litigation Support

leadership lessons litigation law firms litigation support

Featured E-Book: The Environmental Litigator's Guide to Trial Presentation & Prep

environmental litigation trial presentation trial prep ebook a2l


KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

dr laurie kuslansky jury consultant a2l consulting

Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

Articles by Category

Follow A2L Consulting

Member Red Well Blog
ABA Blawg 100 2013 7th annual

Follow Us on Google+

A2L on Google+