Apple v. Samsung - Design Professionals Amicus Brief

Case: 14-1335
CASE PARTICIPANTS ONLY Document: 105
Page: 1
Filed: 08/04/2014
No. 2014-1335
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
_______
APPLE INC., a California corporation
Plaintiff-Appellee,
v.
SAMSUNG ELECTRONICS CO., LTD., a Korean corporation,
SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation,
SAMSUNG TELECOMMUNICATIONS AMERICA LLC,
a Delaware limited liability company
Defendants-Appellants,
_________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA, CASE NO. 11-CV-1846,
JUDGE LUCY H. KOH
_________________
AMICI CURIAE BRIEF OF 54 DISTINGUISHED
INDUSTRIAL DESIGN PROFESSIONALS
IN SUPPORT OF AFFIRMANCE
_________________
Rachel Wainer Apter

Will Melehani
ORRICK, HERRINGTON
& SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
(212) 506-5000
Mark S. Davies
Katherine M. Kopp
ORRICK, HERRINGTON
& SUTCLIFFE LLP
1152 15th Street, NW
Washington, DC 20005
(202) 339-8400
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CERTIFICATE OF INTEREST
Pursuant to Federal Circuit Rules 29(a) and 47.4, counsel for
Amici Curiae certifies that:
1.
The full names of every party or amicus represented in the
case by me are:
54 Distinguished Industrial Design Professionals in Support
of Affirmance (See Attachment to Certificate of Interest).
2.
The name of the real party in interest (if the party named in
the caption is not the real party in interest) represented by me is:

Not Applicable
3.
All parent corporations and any publicly held companies
that own 10 percent or more of stock of any party or amicus curiae

represented by me are:
Not Applicable
4.
The names of all law firms and the partners or associates
that appeared for a party or amicus now represented by me in the trial

court or are expected to appear in this Court are:
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ORRICK, HERRINGTON & SUTCLIFFE LLP:

Mark S. Davies
Rachel Wainer Apter
Katherine M. Kopp
Will Melehani
Date: August 4, 2014
By: /s/ Mark S. Davies

Mark S. Davies
Orrick, Herrington & Sutcliffe LLP
Telephone: (202) 339-8400
Fax: (202) 339-8500
Email: mark.davies@orrick.com
Attorney for Amici Curiae
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ATTACHMENT TO CERTIFICATE OF INTEREST

54 Distinguished Industrial Design Professionals
in Support of Affirmance* **
1.
Charles L. Mauro CHFP, IDSA, HFES

President & Founder, MauroNewMedia
Chairman, IDSA Design Protection Section
2.
James Douglas Alsup, Jr. IDSA

President/Principal, Alsup Watson Associates, Inc.
3.
Charles Austen Angell

CEO, Modern Edge
4.
Daniel W. Ashcraft
Chief Design Officer & CEO, Ashcraft Design
5.
Joseph M. Ballay
Principal & CAO, MAYA Design, Inc.
6.
Alex Bally, FIDSA

Partner, Nexxspan Healthcare LLC
7.
Michelle S. Berryman, FIDSA

Director, Experience Design Servs., THINK Interactive
Former President, IDSA
Chair Emeritus, IDSA
Institutions are listed for affiliation purposes only. All signatories are participating in their individual capacity and not on behalf of
their institutions.
*
Emily Fisher (Design Research Associate) at MauroNewMedia

also contributed reference research to this brief.
**
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8.
Eric Beyer, IDSA

Partner, Copesetic Inc.
Designer/Account Manager, Pulos Design Assocs.
Former IDSA Board Member, Section VP
9.
Dr. Robert Ian Blaich, FIDSA

President, Blaich Assocs., Design Mgmt. Consultants
Fellow, Royal Society of Arts and Industry-U.K.
Former President, Intl Council Socy of Indus. Designers
Former Vice President Corporate Design and Commcns, Herman
Miller Inc.
Former Senior Managing Director of Design, Royal Philips Elecs.
10.
Gordon Paul Bruce, IDSA

Indus. Design Consultant, Gordon Bruce Design LLC
11.
Robert Brunner
Founder/Partner, Ammunition LLC
12.
William Bullock, FIDSA

Indus. Designer
13.
Bruce Claxton, FIDSA

Professor, Design Mgmt., Savannah College of Art and Design
Regional Advisor, ICSID
Board of Directors, China Bridge Intl
14.
Del Coates
Prof. Emeritus of Indus. Design, San Jose State Univ.
Former Chair of Indus. Design, College for Creative Studies
Former Research Designer, Ford's Advanced Vehicle Concepts
Dept.
Former Project Leader, Herman Miller Research Div.
Former President, Michigan Chapter IDSA
Co-Founder,Texas Chapter IDSA
15.
Robert J. Cohn, IDSA

President, Product Solutions Inc.
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16.
James Couch
VP Client Servs., Lextant
17.
George Russell Daniels, L/IDSA

CEO, Daniels Development Grp., LLC
18.
Mark Dziersk
Managing Director, LUNAR
19.
John Edson
President, LUNAR
20.
Gerard Furbershaw
Co-Founder & VP of Licensing and Investments, LUNAR
21.
Carroll Gantz, FIDSA

President, Carroll Gantz Design
Chairman Emeritus, IDSA
Recipient, IDSA Personal Recognition Award Design
Former Director of Design, Black and Decker U.S. Inc.
Former Manager, Design Dept., The Hoover Co.
22.
John Leavitt Gard, L/IDSA

Product Design Director, Design Consultants
23.
Michael Garten, IDSA

Project Mgmt. Grp. Manager, Teague
24.
Donald M. Genaro
Retired Senior Partner, Henry Dreyfuss Assocs.
25.
Betsy Goodrich, FIDSA

Co-Founder & VP Design, MANTA Product Development Inc.
26.
Stephen G. Hauser FIDSA

Consultant/Founder, Hauser, Inc.
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27.
James J. Lesko, L/IDSA

VP Design and Mfg., IKN
28.
Scott David Mason, IDSA

Owner, Scott Mason Design
Mid-Atlantic Chapter Vice Chair, IDSA
29.
Patricia Moore, Ph.D

President, MooreDesign Assocs. LLC
30.
Louis Nelson, IDSA, AIGA, SEGD

President & Founder, The Office of Louis Nelson
31.
Christopher J. Parke, IDSA

Sr. Industrial Designer /Engineer
32.
Nancy Perkins, FIDSA

CEO, Dallas Lighthouse for the Blind, Inc.
33.
Gordon Perry, IDSA

Gordon Randall Perry Design
34.
Samuel B. Petre, IDSA

Senior Indus. Designer, bb7
35.
Dale Raymond, IDSA, HFES

Principal, Design-Lift, LLC
36.
Raymond W. Riley, IDSA

Exec. Creative Director, Device Design Grp., Microsoft Corp.
37.
Brian Roderman, FIDSA

President & Chief Innovation Officer, IN2 Innovation
38.
Bryce G. Rutter, Ph.D.

Founder & CEO, Metaphase Design Group, Inc.
39.
Andrew Serbinski, IDSA

President, Machineart Indus. Design
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40.
RitaSue Siegel, IDSA, AIGA, DMI

Founder & President, RitaSue Siegel Resources
41.
Paul Specht, FIDSA

President, PBS Design, Inc.
42.
Budd Steinhilber, FIDSA

Design Consultant
43.
John V. Stram, L/IDSA
44.
Kerstin Nelsen Strom, IDSA

Design Director, Strom Studios
Section Chair, IDSA Ecodesign Section
45.
Mathieu Turpault, IDSA

Partner & Director of Design, Bresslergroup
46.
Gary van Deursen L/IDSA

Consultant/Founder, Van Deursen LLC
Former Corp. VP, The Stanley Works
Former Corp. Sr. VP, Coleman
Former Corp. Global VP, Black & Decker
47.
Frank von Holzhausen

President, GROUP4
48.
Sohrab Vossoughi
President, Ziba Design, Inc.
49.
Arnold Wasserman
Partner, Collective Invention
Co-Founder & Chairman, The Idea Factory
Former Director of Design, Raymond Loewy Co.
Former Director, Corporate Design & Human Factors, NCR Corp.
Former Director, Corporate Design Strategy, Xerox Corp
Former Fellow for Design Strategy, IDEO
50.
Allan E. Weaver
Industrial designer, retired
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51.
Edmund A. Weaver, L/IDSA

Retired Assoc. Tech. Principal, Kraft Foods
52.
Robert Welsh, IDSA

VP Indus. Design & Brand Mktg., DEWALT Power Tools
53.
Stephen B. Wilcox, Ph.D., FIDSA

Principal, Design Science
54.
Angela Yeh, IDSA

President & CEO, Yeh IDeology
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES..................................................................... x
INTERESTS OF AMICI CURIAE ........................................................... 1
ARGUMENT ............................................................................................ 5
I.
THE VISUAL DESIGN OF A SOPHISTICATED AND

COMPLEX TECHNOLOGICAL PRODUCT BECOMES THE
PRODUCT ITSELF......................................................................... 5
A.
The Founders of Industrial Design Discovered That

Visual Design Drives Sales.................................................... 6
B.
Visual Design Sells Because it Conveys the Function,

Origin, and Overall Experience of Using a Product............ 15
C.
II.
1.
The design of a product conveys the function of

the product. ................................................................. 16
2.
The design of a product conveys the origin of the

product......................................................................... 17
3.
The design of a product conveys the overall

experience of using the product. ................................. 19
Visual Design Sells Complex Consumer Technology .......... 22
ANYONE WHO COPIES A PATENTED DESIGN SHALL

BE LIABLE TO THE OWNER TO THE EXTENT OF HIS
TOTAL PROFIT........................................................................... 27
CONCLUSION ....................................................................................... 35
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TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Catalina Lighting v. Lamps Plus,
295 F.3d 1277 (Fed. Cir. 2002) ........................................................... 35
Dobson v. Dornan,
118 U.S. 10 (1886)............................................................................... 32
Dobson v. Hartford Carpet Co.,
114 U.S. 439 (1885)............................................................................. 32
Egyptian Goddess, Inc. v. Swisa, Inc.,
543 F.3d 665 (Fed. Cir. 2008) (en banc) ............................................. 28
Gorham Co. v. White,
81 U.S. 511 (1872)......................................................................... 28, 35
LaserDynamics, Inc. v. Quanta Computer, Inc.,
694 F.3d 51 (Fed. Cir. 2013) ............................................................... 33
Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co.,
316 U.S. 203 (1942)............................................................................. 34
Nike, Inc. v. Wal-Mart Stores, Inc.,
138 F.3d 1347 (Fed. Cir. 1998) ..................................................... 32, 33
Sheldon v. Metro-Goldwyn Picture Corp.,
309 U.S. 390 (1940)....................................................................... 33, 34
Tamko Roofing Prods., Inc. v. Ideal Roofing Co., Ltd.,
282 F.3d 23 (1st Cir. 2002) ................................................................. 34
FEDERAL STATUTES
17 U.S.C. 504(b)..................................................................................... 34
35 U.S.C. 171 ..................................................................................... 2, 28
35 U.S.C. 289 ..................................................................................... 2, 29
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Act of Feb. 4, 1887, Ch. 105, 1, 24 Stat. 387. ........................................ 32

Act of Aug. 1, 1946, Ch. 726, 60 Stat. 778 .............................................. 33
LEGISLATIVE MATERIALS
H.R. Rep. No. 1966 (1886), reprinted in 18 Cong. Rec. 834
(1887)......................................................................................... 4, 31, 32
OTHER AUTHORITIES
David A. Aaker, Building Strong Brands (1996) ............................. 18, 19
Peter H. Bloch, Seeking the Ideal Form: Product Design and
Consumer Response, J. of Marketing, Jul. 1995 ................... 16, 17, 18
John R. Bryson, et al., Design Workshops of the World: The
Production and Integration of Industrial Design Expertise
into the Product Development and Manufacturing Process
in Norway and the United Kingdom (Inst. for Research in
Econ. and Bus. Admin. Working Paper No. 53, 2004),
available at http://tinyurl.com/nofybck ................................................ 9
Daniela Bchler, How Different Is Different? Visual
Perception of the Designed Object (2011)............................................ 17
Donald S. Chisum, Chisum On Patents: A Treatise On The
Law Of Patentability, Validity And Infringement 20.01
(2009)................................................................................................... 33
Del Coates, Watches Tell More than Time: Product Design,
Information, and the Quest for Elegance (2003) ................................ 17
Thomas F. Cotter, Reining in Remedies in Patent Litigation:
Three (Increasingly Immodest) Proposals, 30 Santa Clara
High Tech. L. J. 1 (2013) .................................................................... 30
Nathan Crilly et al., Seeing Things: Consumer Response to
the Visual Domain in Product Design, 25 Design Studies
547 (2004).................................................................................... passim
xi
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Dave Evans, The Internet of Things: How the Next Evolution

of the Internet is Changing Everything (Cisco IBSG 2011),
available at http://tinyurl.com/88uhsx3. ...................................... 25, 26
Mark Fischetti, Patent Crossroads: Countries and
Companies Scramble to Gain a Competitive Edge, Sci.
Am., Jul. 2014 ............................................................................... 14, 15
David Gartman, Auto-Opium: A Social History of American
Automobile Design (Routledge 1994)...................................... 10, 11, 12
Siegfried Giedion, Mechanization Takes Command: A
Contribution To Anonymous History (1948) ........................................ 6
Kathryn B. Hiesinger & George H. Marcus, Design Since
1945 (1983)............................................................................................ 8
Mark A Lemley, A Rational System of Design Patent
Remedies, 17 Stan. Tech. L. Rev. 219 (2013). .................................... 30
Raymond Loewy, Industrial Design: Yesterday, To-Day and
Tomorrow? Address Before the Meeting of the Society and
the Faculty of Royal Designers for Industry (Oct. 9, 1980)
in J. of the Royal Society of Arts, Mar. 1981, available at
http://tinyurl.com/k82286s.................................................................... 9
Ian MacKenzie et al., How Retailers Can Keep up with
Consumers, McKinsey & Co. (Oct. 2013),
http://tinyurl.com/q9qq4re.................................................................. 25
Charles L. Mauro, User-Centered Design in the New World of
Complex Design Problems, Innovations (Winter 2012),
available at http://tinyurl.com/mj6ugdw...................................... 25, 26
Bonnie Nichols, National Endowment for the Arts Research
Report No. 56, Valuing the Art of Industrial Design, A
Profile of the Sector and Its Importance to Manufacturing,
Technology and Innovation (Aug. 2013)............................................. 14
Donald A. Norman, Emotional Design: Why We Love (or
Hate) Everyday Things (2004) ............................................................ 19
xii
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Stephen E. Palmer, Vision Science, Photons to

Phenomenology (1999) .................................................................. 15, 16
Arthur J. Pulos, American Design Ethic: A History of
Industrial Design to 1940 (1983) ............................................ 5, 6, 7, 10
Quarterly Retail E-Commerce Sales 1st Quarter 2014, U.S.
Census Bureau News, (May 15, 2014, 10:00 AM),
http://tinyurl.com/nfcfkv8 ................................................................... 25
Jeneanne Rae, What Is the Real Value of Design? 24 Design
Management Review 30, Winter 2013 ......................................... 13, 14
Violina P. Rindova & Antoaneta P. Petkova, When Is a New
Thing a Good Thing? Technological Change, Product
Form Design, and Perceptions of Value for Product
Innovations, 2006 Design Research Socy, Intl Conference
in Lisbon (IADE), Paper 0311, available at
http://tinyurl.com/ljfepdv .............................................................. 20, 27
Shaun Smith & Joe Wheeler, Managing the Customer
Experience: Turning Customers into Advocates (spec. ed.,
Pearson Custom Publg, 2002)................................................ 18, 19, 20
Rob Tannen, How to Protect UI with Design Patents,
Accelerator (May 8, 2013), http://tinyurl.com/o8h9ppu ..................... 28
Ford. H. Tarantous, Big Improvement in Comfort of 1925
Cars, N.Y. Times, Jan. 4, 1925 ........................................................... 12
U.S. Patent and Trademark Office, U.S. Patent Statistics
Chart, Calendar Years 1963-2013, http://www.uspto.gov/
web/offices/ac/ido/oeip/taf/us_stat.htm (last modified Jul.
24, 2013)............................................................................................. 28
Visualizations Make Big Data Meaningful: New Techniques
Are Designed to Translate Invisible Numbers Into Visible
Images, Comm. of the ACM, June 2014, available at
http://tinyurl.com/oz2y8un ................................................................. 14
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Cooper C. Woodring, Foreword to Darius C. Gambino &

William L. Bartow, Trade Dress, Evolution, Strategy and
Practice (2013) .............................................................................. 12, 13
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INTERESTS OF AMICI CURIAE

Amici curiae are distinguished industrial design professionals who
work in high-profile consulting firms and leading high-technology
corporations across the United States. We have many years of
experience providing product-design services to leading U.S. and
international corporations, nonprofit organizations, and government
entities including American Airlines, AT&T, Citibank, Coca-Cola, Ford,
General Electric, General Motors, Goldman Sachs, The Harvard
Endowment, Herman Miller, Hewlett Packard, IBM, Knoll, Kodak,
Lenovo, LG, Mobil Oil, Motorola, the New York Stock Exchange, NASA,
Nike, Pfizer, Polaroid, Porsche, the Salt Lake City Public Library,
Whirlpool, and Xerox.
Amici have served as President and Chairman of the Board of the
Industrial Designers Society of America. We have lectured at leading
graduate programs, including MIT Sloan School of Management,
Stanford University, Parsons School of Design, the University of
Pennsylvania, and at leading law conferences on design patents,
including the 2013 Stanford Law School Design Patent Conference.
Collectively, we have written and contributed to hundreds of leading
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business and news publications, including Business Week, The New

York Times, and The Wall Street Journal.
We all share a strong professional interest in seeing that design
patent law continues to protect investments in product design.
Congress has provided that [w]hoever invents any new, original and
ornamental design for an article of manufacture may obtain a patent
therefor. 35 U.S.C. 171. And one who infringes a design patent shall
be liable to the owner to the extent of his total profit. 35 U.S.C. 289.
We have based our professional lives on the assumption that designs
are patentable and worth enforcing when infringed. Indeed,
collectively, we are named inventor on hundreds of U.S. design patents.
Amici have no personal interest in the outcome of this dispute
between Apple Inc. and Samsung Electronics. We have consulted for
both parties. Notably and appropriately, both of these leading
technology companies own numerous design patents. This case
happens to involve three of Apples design patents (see Apple Br. 7-9)1
covering the iPhones front face (U.S. Design Patent No. 618,677),
Apple Br._ refers to the identified page(s) of Apples July 28,

2014 principal brief.
1
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distinctive appearance (U.S. Design Patent No. 593,087), and graphical

user interface (U.S. Design Patent No. 604,305). But Samsung also
owns design patents on various devices, such as SmartTVs or media
display devices, that, like the iPhone, are sophisticated and complex
technological products. See, e.g., U. S. Design Patent No. 658,612. The
fundamental principles of visual design set forth below are agnostic as
to who brings forth a new design to the world.2
The undersigned were prompted to submit this brief in significant
part to respond to an amicus brief submitted by a set of law professors
with unspecified design qualifications. The law professors brief takes
issue with the view that design drives the sale of the product. See
Law Professors Br. 7-11.3 The law professors suggest that what
matters more is the function of the product, id. at 10, and insist that
protecting design patents by requiring an infringer to disgorge all
profits [m]akes [n]o [s]ense in the [m]odern [w]orld. Id. at 7. We
No one other than the undersigned wrote or funded any portion

of this brief. Both parties have consented to the filing of this brief.
2
Law Professors Br._ refers to the Law Professors June 4, 2014

Amici Curiae Brief.
3
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submit this brief to provide the Court with the relevant historical and
scientific material that rebuts each proposition.
First, design drives sales of products. Since the emergence of the
field of modern Industrial Design in the 1920s and 30s, product design
is the way to sell technological innovation and manufacturing knowhow. The visual design of a product comes to signify to the consumer
the underlying function, origin, and overall user experience associated
with that product.
Second, the most sensible policy in these circumstances remains
the one Congress adopted a long time ago: Infringement of a design
patent should result in award of the infringers total profits to the
designer. As Congress realized in 1887, it is the design that sells the
article, and so that makes it possible to realize any profit at all.
H.R. Rep. No. 1966 (1886), reprinted in 18 Cong. Rec. 834 (1887).
Design patents protect from misappropriation not only the overall
visual design of products, but the underlying attributes attached to the
design of the product and embodied in the mind of the consumer by the
products visual appearance. When an infringer copies the design of a
successful product, it captures the consumers understanding of what
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the product does and what the product means. Correctly understood,
the total profit earned from the infringing product is therefore the
fitting remedy for design patent infringement: without the infringing
design, there would be no sales and no profits.
In this case, the jury found that Samsung unlawfully copied the
iPhones patented visual design. The undersigned take no position on
whether that jury finding was correct. But assuming so, the jury
properly awarded to Apple all of Samsungs profits from selling the
infringing devices. Any other result would reflect a deep
misunderstanding of design.
ARGUMENT
I.
THE VISUAL DESIGN OF A SOPHISTICATED AND

COMPLEX TECHNOLOGICAL PRODUCT BECOMES THE
PRODUCT ITSELF
Prior to the creation of the field of modern Industrial Design,
American manufacturers produced complex commercial and consumer

products without much regard to how the products looked. To the
extent visual design was considered at all, it was relegated to legs,
support brackets, and hardware. Arthur J. Pulos, American Design
Ethic: A History of Industrial Design to 1940 279 (1983). Most
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consumers, in turn, made purchasing decisions based on price and

availability. The American public was not concerned with such lofty
notions as the relationship of function to form or the inherent aesthetic
of manufactured objectsit was simply overwhelmed by the flood of
affordable machine-made products that promised to improve material
existence. Id. at 161. Henry Ford, for example, was noted for his lack
of interest in design, yet his Model T automobile sold more than 15
million units. Id. at 256.
This neglect of visual design rested on a misunderstanding of
human behavior. In the 1920s and 30s, manufacturers started to
recognize that appearance does count, and industrial designers
became integral to shaping mass-produced objects. Siegfried Giedion,
Mechanization Takes Command: A Contribution To Anonymous History
608-10 (1948). This belated attention to design led to massive profits, a
trend that has accelerated in the age of complex multifunctional
technological products.
A.
The Founders of Industrial Design Discovered that

Visual Design Drives Sales
The three primary founders of Industrial Design were Raymond

Loewy, Walter Dorwin Teague, and Henry Dreyfuss. In different ways
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and for different companies, these three created attractive and

compelling products that were pleasing to the eye and readily
identifiable in the marketplace. By focusing on how products looked,
they gave life and meaning to the underlying features and functions of
the machines.
Walter Dorwin Teague designed many of Kodaks most famous
cameras. He was lauded for his ability to emphasize the beauty
in a thing of primarily utilitarian character. Pulos, supra, at
285 (internal quotation marks omitted).
Henry Dreyfusss iconic product designs included the Hoover
vacuum cleaner, Western Electric telephone, and John Deere
tractor. Dreyfuss was recognized as the conscience of the
industrial design profession. Id. at 289-91. He emphasized
utility and usability, a concern for the consumer, and a focus on
fitting products to people rather than vice versa. Id. at 289.
Raymond Loewys designs included Pennsylvania Railroad
locomotives and the Coca-Cola bottle. His work was so far
reaching that by the 1940s and 50s, an estimated threequarters of Americans came into contact with one of Loewys
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designs each day. Kathryn B. Hiesinger & George H. Marcus,

Design Since 1945 220 (1983).
A classic example of early industrial design was Loewys work on
the Gestetner duplicating machine. The original machine consisted of
exposed and chaotic-looking metals and gears sitting on four protruding
tubes:
Loewy was given three days to redesign it. [D]etect[ing] the inherent
hazards of the four protruding legs in a busy office, Loewy covered the
machine with Plasticine clay and encased it in a wooden cabinet to hide
the mechanisms:
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John R. Bryson, et al., Design Workshops of the World: The Production

and Integration of Industrial Design Expertise into the Product
Development and Manufacturing Process in Norway and the United
Kingdom (Inst. for Research in Econ. and Bus. Admin. Working Paper
No. 53, 2004), available at http://tinyurl.com/nofybck.
Loewys aesthetic changes were a huge success: sales of the newly
attractive machine soared, Gestetner built three more factories to meet
the increased demand, and the company kept the same model for thirty
years. Raymond Loewy, Industrial Design: Yesterday, To-Day and
Tomorrow? Address Before the Meeting of the Society and the Faculty
of Royal Designers for Industry (Oct. 9, 1980) in J. of the Royal Society
of Arts, Mar. 1981, at 200, 203, available at http://tinyurl.com/k82286s.
Similarly, in 1934, Sears hired Loewy to redesign its refrigerator line.
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The resulting model, the Coldspot, saw its sales grow from 15,000 to
275,000 units within five years, making Sears a major supplier of
household appliances. Pulos, supra, at 358.
The competition between Ford and General Motors during the
1920s also illustrates the new focus on visual design. At the turn of the
twentieth century, that the automobile worked at all and could be
operated with reasonable reliability was sufficient. Id. at 242-43.
Descriptions of automobiles ranged from generally untidy to
positively ugly. David Gartman, Auto-Opium: A Social History of
American Automobile Design 23, 26 (Routledge 1994). The Model T was
typical:
Steve Simm
10
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Yet, Henry Ford initially saw no reason to enhance his design, satisfied
by the 3:1 sales gap between Ford and General Motors.
Then, in 1926, General Motors introduced a bold and colorful
Chevrolet:
Sales of the Chevrolet quickly surpassed sales of the black Model T.

Shortly thereafter, Ford released its first stylized car, the Model A.
Gartman, supra, at 77.
The recognition of the importance of visual design led to huge U.S.
economic growth. Without changing the underlying technology,
engineering or functionality, a single manufacturer could suddenly
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create a vast number of different models simply by changing their

shape, style and appearance. General Motors, for example, maintained
five separate brands (Chevrolet, Pontiac, Oldsmobile, Buick, and
Cadillac), whose models shared not only mechanical parts, like
transmissions and brakes, but also the structural foundations of the
cars body, called body shells. Id. at 76. Yet each model looked unique
due to the addition of aesthetic features (e.g., fenders, headlights,
taillights, and trim) and different colors. Id. at 76-81. Sales of these
different models to people ever thirsty for something new, propelled
GM sales past Ford. H. Tarantous, Big Improvement in Comfort of 1925
Cars, N.Y. Times, Jan. 4, 1925 at A2; Gartman, supra, at 92. Other
major manufacturers soon caught on, establishing their own versions of
General Motors styling section. Gartman, supra, at 92-93.
In short, thanks to the efforts and success of Loewy, Teague,
Dreyfuss and others, American manufacturers recognized that how a
product looked, in terms of its overall shape and style, mattered to
consumers. Good design became no longer a luxury or a novelty but a
necessity considered by most nations to be a competitive weapon
and a national resource. Cooper C. Woodring, Foreword to Darius C.
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Gambino & William L. Bartow, Trade Dress, Evolution, Strategy and

Practice, at xvii, xix (2013). In 2010, the United States Postal Service
produced a set of collectable stamps commemorating the founders of
Industrial Design. These stamps, shown below, reflect seminal
products from the dawn of Industrial Design as a formal professional
3MMIMFIMMT
discipline.
Frederick Herten Ahead
USA
GJ
ro
V7
Peter MuilvMunk
ItoymorW LdeVry
USA
USA
nervy Dreyiu.
USA
Wald' Ddrie...ri L.rdeu.
USA
Noyes
USA
'Russel Wrigihe
USA
Today, it is clear that giving design a seat at the table adds

significant value that helps differentiate and elevate companies beyond
the norm and helps to deliver tangible business results. Jeneanne Rae,
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What Is the Real Value of Design? 24 Design Management Review,

Winter 2013 at 30, 37. In fact, Americas top fifteen design conscious
companies outperform their peer group by 228% on a market asset
value basis. Id. at 33. Similarly, the role of the designer has been
elevated to a powerful position in modern companies. There are over
40,000 industrial designers in the United States, and many Silicon
Valley startups [now] have three co-founders: a technologist, a business
person, and an artist. See Bonnie Nichols, National Endowment for
the Arts Research Report No. 56, Valuing the Art of Industrial Design:
A Profile of the Sector and Its Importance to Manufacturing, Technology
and Innovation 8 (Aug. 2013); Visualizations Make Big Data
Meaningful: New Techniques Are Designed to Translate Invisible
Numbers Into Visible Images, Comm. of the ACM, June 2014, at 19, 21,
available at http://tinyurl.com/oz2y8un.
Moreover, [t]he visual appearance of products is a critical
determinant of consumer response and product success. Nathan Crilly
et al., Seeing Things: Consumer Response to the Visual Domain in
Product Design, 25 Design Studies 547, 547 (2004); see also Mark
Fischetti, Patent Crossroads: Countries and Companies Scramble to
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Gain a Competitive Edge, Sci. Am., Jul. 2014 at 96, 96 (the success of
any individual product may increasingly depend on its design.).
B.
Visual Design Sells Because it Conveys the Function,

Origin, and Overall Experience of Using a Product
Visual design drives sales because vision has powerful effects on

the human mind. New visual designs for products not only give
products a new look or a competitive edge, but can actually become the
product in the mind of the consumer. This is because how a product
looks conveys how it operates, where it comes from, and what it means.
See, e.g., Crilly, supra, at 547 (Judgments are often made on the
elegance, functionality and social significance of products based largely
on visual information.).
Cognitive scientists explain how this phenomenon works.
Scientists have divided visual processing into four stages; of particular
relevance here is the fourth category-based stage.4 During the
The first three stages are: (1) the image-based stage (edges,
lines, and line endings are processed); (2) the surface-based stage (properties of surfaces in the external world are used to inform the image);
and (3) the object-based stage (the processing system makes inferences
about what might not be seen in the image, such as the hollow inside of
a box). Stephen E. Palmer, Vision Science, Photons to Phenomenology
85-92 (1999).
4
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category-based stage, the image conveys to a consumer the function,

origin, and overall experience of using a product.
1.
The design of a product conveys the function of

the product.
We begin to manipulate our external world by visually identifying

objects and then categorizing those objects based on how they look.
Palmer, supra, at 85-92. When we see a product, our eyes take in an
image that is projected onto an array of receptors in our retinas. Id. at
86. In the category-based stage of visual processing, the visual system
recovers the functional properties of objects: what they afford the
organism, given its current beliefs, desires, goals, and motives. Id. at
91. The visual image of a product is the first stimulus a consumer uses
to identify and build a mental model of the products functions; it elicits
beliefs about product attributes and performance. Peter H. Bloch,
Seeking the Ideal Form: Product Design and Consumer Response, J. of
Marketing, Jul. 1995, at 16, 20.
The human information processing system does not separate the
physical appearance of an object from the related functions of that
object. A consumers visual perception of an object is constructed by
the knowledge [the consumer] has of [that object]. This visual
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perception is therefore a filtered visual interpretation that is made up of

only the physical features that the knowledge filter has allowed to seep
through to the perceiver. Daniela Bchler, How Different Is Different?
Visual Perception of the Designed Object 84-85 (2011) (emphasis added).
Thus, when a consumer encounters a known product, the
consumer identifies the look of the product with the underlying
functional features. Design subsumes all the other factors by
determining the character and worth of each and every one of a
products attributes. Del Coates, Watches Tell More than Time:
Product Design, Information, and the Quest for Elegance 15 (2003).
Design is the pathway to function.
2.
The design of a product conveys the origin of the

product.
During the fourth phase of visual processing, a products visual

appearance also comes to signify where the product comes from. This is
so because we organize our understanding of the world in terms of
relationships between distinct classes of objects. Bchler, supra, at
108. Consumers attempt to understand products by placing them in
existing categories based on perceived similarities. Bloch, supra, at 20.
Industrial designers seek to capitalize on the human information
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processing systems desire to make connections between products by

using similar attributes across products to define an entire brand. This
categorization, or a consumers ability to understand differences among
products while still connecting them based on knowledge and
experience, is the essence of modern branding.
For example, [p]roduct form may create or influence beliefs
pertaining to such characteristics as durability, dollar value, technical
sophistication, ease of use, sex role appropriateness, and prestige.
Designers often choose particular form elements to proactively
encourage the creation of desirable beliefs. Bloch, supra, at 19. In
aggregate, these attributes are what create and define a brand. The
common clich that [p]roducts are built in factories, brands are built in
the mind thus holds true. Shaun Smith & Joe Wheeler, Managing the
Customer Experience: Turning Customers into Advocates 7 (spec. ed.,
Pearson Custom Publg, 2002).
Once visual design and functional features create the brand, the
brand can then become a vehicle for representing and cueing functional
benefits and brand attributes. David A. Aaker, Building Strong
Brands 168 (1996). For example, a functional feature of a Harley-
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Davidson motorcycle is that the motorcycle is powerful, but it is HarleyDavidsons rugged, macho, freedom-seeking brand personality that
gives a backbone to this product attribute and convinces the customer of
its value. Id.
3.
The design of a product conveys the overall

experience of using the product.
Products can deliver a visual design that conveys to the consumer

attributes that go beyond the underlying functions and the brand.
Instead, the visual design of a product can convey higher level
attributes of the total user experience and the modern life-style benefits
of the product. The visual design of a product can thus come to
represent the consumers perception of the total user experience at the
time of viewing.
The total user experience takes into account customers rational
and emotional expectations. Smith, supra, at 56. This is important
because positive emotions sell. It is not surprising that attractive
things make people feel good. Donald A. Norman, Emotional Design:
Why We Love (or Hate) Everyday Things 19 (2004). But research
confirms that emotional connections to products and brands are among
the biggest drivers of repeat business. Smith, supra, at 56. Indeed,
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[c]onsumer preferences and motivation are far less influenced by the

functional attributes of products and services than the subconscious
sensory and emotional elements derived by the total experience. Id.;
see also Crilly, supra, at 6.4, p. 565 ([T]he symbolic meaning
associated with products often has the potential to dominate the
aesthetic and semantic aspects of cognitive response.); Violina P.
Rindova & Antoaneta P. Petkova, When Is a New Thing a Good Thing?
Technological Change, Product Form Design, and Perceptions of Value
for Product Innovations, 2006 Design Research Socy, Intl Conference in
Lisbon (IADE), Paper 0311, available at http://tinyurl.com/ljfepdv
([C]ustomers experiencing positive emotions may feel more predisposed
to try new things and may perceive them as having higher value .).
It is the design of a successful product that embodies the consumers
understanding of and desire to own and interact with that product.
***
Here is a diagram that illustrates the science explaining why
visual design sells products:
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How visual design sells

Cognitive processing of the visual desrgn
Retinal
image
V
Image-based
processing
V
Surface-based
processing
Habituation /
Experience
Object-based
processing
Product categorybased processing

Object
Function
Object
Origin
/11111,
Overall
experience/
emotional
connection
Copyright MauroNewMedia, inc. 2014
A consumer sees the products image, the image is then processed

through the various stages, and, at the category-based stage, the
consumer recognizes the function, origin, and emotion of using the
product.
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C.
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Visual Design Sells Complex Consumer Technology
Just like Loewys Gestetner duplicating machine and GMs Chevy,

the visual design of todays smartphone uses the human processing of
visual images to convey to consumers the function, origin, and overall
experience of using the product. Modern smartphones include
thousands of features covering email, camera, browser, music player,
text messaging, contacts, calendar, databases, and options for millions
of customized applications. Each of these features contributes to the
overall functioning of the product and to the total user experience. But
no single feature defines the phone in the mind and eye of the
consumer.
Instead, in an increasingly complex marketplace where product
feature density is expanding exponentially, and where basic
functionality is assumed, the visual design of a product is the only way
to represent to the consumer the underlying technical innovations and
manufacturing know-how of the product itself. See Crilly, supra, at
9.1, p. 574 (In mature markets, where the functionality and
performance of products are often taken for granted, attention is
increasingly focused on the visual characteristics of products. In such
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markets, attention to a products appearance promises the

manufacturer one of the highest returns on investment. (internal
quotation marks omitted)).
The following images illustrate the point:
Modern srnartphone without

visual design applied
Modern srnartphone with

Copyright MaurioNeviryledia, Inc. 2014
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Modern srnartphone without

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Modern smartphone with

Copyright MauroNevAledia, Inc. 2014
The consumer deciding which smartphone to purchase would look at a

smartphone and instantly understand the devices function, origin, and
user experience based on the visual design of the device.
That consumers purchase millions of complex, multi-component
products online each day, without ever touching the product or
accessing a single functional feature, confirms that visual design drives
sales. When all the consumer sees is an image of the product on the
computer screen, the design of the product is literally all that sells the
product. And e-commerce has grown by almost 18% per year for the
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past ten years; it now accounts for $71.2 billion dollars in retail sales.
See Ian MacKenzie et al., How Retailers Can Keep up with Consumers,
McKinsey & Co. (Oct. 2013), http://tinyurl.com/q9qq4re; Quarterly
Retail E-Commerce Sales 1st Quarter 2014, U.S. Census Bureau News,
(May 15, 2014, 10:00 AM), http://tinyurl.com/nfcfkv8.
Looking to the future, the focus on visual design will continue as
complex and sophisticated technological products become ever more
present. This trend is referred to as The Internet of Things (IoT).
Dave Evans, The Internet of Things: How the Next Evolution of the
Internet is Changing Everything, 1-2 (Cisco IBSG 2011) available at
http://tinyurl.com/88uhsx3. In this era, products like the modern
smartphone become part of a vast interconnected network of devices
that interactively share features and functions in order to extend
technological control over our everyday lives. Charles L. Mauro, UserCentered Design in the New World of Complex Design Problems,
Innovation 20, 21 (Winter 2012) available at
http://tinyurl.com/mj6ugdw. Already, a person can remotely manage
heating and air conditioning, lights, television, video camera, washer
and dryer, refrigerator, and door locks using any device with a
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connection to the internet. It is estimated that fifty billion devices will

be connected to the IoT by 2020, leading many to call it the most
important technology trend of the last fifty years. Evans, supra, at 3.
In the world of the IoT, the visual design of whichever device a person
chooses to control his surroundings comes to represent not only the
features and functions of that device, but the features and functions of
all other devices connected to the IoT. Mauro, supra, at 22-23.
***
In sum, the visual design of a product comes to signify the
function of the product, the origin of the product, and the consumers
perception of the total user experience. To a consumer, the visual
design of a smartphone represents the sum total of all the underlying
features and the lifestyle benefits of the phone: essentially, what the
phone can do for the consumer. Product design is the way to create
value from technological innovations and manufacturing know-how.
The design is the product.
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II.
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ANYONE WHO COPIES A PATENTED DESIGN SHALL BE

LIABLE TO THE OWNER TO THE EXTENT OF HIS TOTAL
PROFIT
When a company copies the visual design of a product, it takes
more than the overall shape, style, and appearance of the product. As
explained above, the copier also takes the key identifying element under
which functional features are understood, the brand is identified, and
the total user experience is associated. When two products look the
same, they are often subconsciously processed in the consumers mind
as being the same. See Crilly, supra, at 7.2, p. 567 ([R]eference may
also be made to similar products within the same product category.
Products may be explicitly compared to competing products. This
informs purchase decisions because product form is often used to
differentiate products within the marketplace.); Rindova, supra, at 8
(Product form is used to increase the apparent similarity of the
innovations to familiar products, in order to tap into existing
understandings).
The established protection against such copying of a visual design
is the design patent: [w]hoever invents any new, original and
ornamental design for an article of manufacture may obtain a patent
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therefor . 35 U.S.C. 171. Design patents have become increasingly

popular in recent years: design patent applications rose from 18,292 in
2000 to 36,034 in 2013. U.S. Patent and Trademark Office, U.S. Patent
Statistics Chart, Calendar Years 1963-2013,
http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm (last
modified Jul. 24, 2013). Design patents covering GUIs have also
become increasingly important. Rob Tannen, How to Protect UI with
Design Patents, Accelerator (May 8, 2013), http://tinyurl.com/o8h9ppu.
A design patent is only infringed if in the eye of an ordinary
observer, giving such attention as a purchaser usually gives, two
designs are substantially the same, if the resemblance is such as to
deceive such an observer, inducing him to purchase one supposing it to
be the other . Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665,
670 (Fed. Cir. 2008) (en banc) (emphasis added) (quoting Gorham Co. v.
White, 81 U.S. 511, 528 (1872). A finding of design patent infringement
thus requires the likelihood of a captured sale: there can be no
infringement unless the infringing product is so similar to the patented
design that an ordinary observer would be induced by the design to
purchase the infringing product.
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The test for infringementthe requirement that an ordinary

observer would be induced by the infringing design to purchase the
infringing productfits perfectly with Congresss chosen remedy: the
infringer is liable for the total profit earned from the infringing sales.
See 35 U.S.C. 289 (Whoever during the term of a patent for a design,
without license of the owner, (1) applies the patented design to any
article of manufacture for the purpose of sale shall be liable to the
owner to the extent of his total profit, but not less than $250 .).
Despite this explicit statutory directive, the amici law professors
argue that an award of total profits in cases of design patent
infringement makes no sense. Law Professors Br. 2. They therefore
suggest that this Court interpret section 289, in accordance with wise
policy and the remainder of the patent statute, to limit the award of
profits in design patent cases to profits attributable to the act of
infringement. Id. at 3. This Court should decline their invitation to
rewrite the statute.5
Although the law professors brief suggests that the plain

language of 289 contains ambiguities that should arguably be
resolved in favor of apportionment, Law Professors Br. 12, its lead
author, Professor Lemley, recently urged Congress to repeal 289
5
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The law professors lodge three main complaints against the plain
language of 289: (1) it drastically overcompensates the owners of
design patents, and correspondingly undervalues technical innovation
and manufacturing know-how; (2) it is at odds with the normal rule for
utility patents and for copyrights and trademarks; and (3) it leaves
troubling questions about what to do with all the other claimants to a
share of the defendants profits. Law Professors Br. 2-3.6 We address
each in turn.
First, the law professors believe that an award of total profits in
cases of design patent infringement overcompensates the design patent
because design patent law requires that infringers ... pay the plaintiff
their entire profit from the sale of the infringing product, even if the
design was only a small feature of that product. Mark A Lemley, A
Rational System of Design Patent Remedies, 17 Stan. Tech. L. Rev. 219,
221, 235-37 (2013). So did another signatory of the professors brief.
See Thomas F. Cotter, Reining in Remedies in Patent Litigation: Three
(Increasingly Immodest) Proposals, 30 Santa Clara High Tech. L. J. 1,
7-8 (2013) (Unfortunately, the simple expedient of properly
apportioning the infringers profits does not appear to be permissible
under [ 289], absent some creative interpretation; a legislative fix
therefore would be desirable.).
The law professors also suggest that awarding total profits
punishes even innocent infringers. Law Professors Br. 2-3; 6. That
concern is irrelevant here because the jury found that Samsung
intentionally copied Apples patented designs. See Apple Br. 72.
6
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holder because not all the value of a product come[s] from design
patents. Id. at 10. Instead, it is more plausible that a functional
feature in a utility patent drives demand than that a patented design
does. Id.
But, as we explained in I.B and I.C above, the law professors have
it backwards. Congress finding that the infringers entire profit on the
article should be recoverable [because] it is the design that sells the
article, and so that makes it possible to realize any profit at all,
H.R. Rep. No. 1966 (1886), reprinted in 18 Cong. Rec. 834 (1887), is
even truer today. In the age of sophisticated and complex technological
products, the visual design of a product is more important, not less. See
Crilly, supra, at 9.1, p. 574. This does not mean that the 250,000
[utility] patents that arguably cover various aspects of a smartphone,
Law Professors Br. 10, are without value; it just means that no one
particular function or feature is driving the sale.
The law professors next objection to an award of total profits is
that it creates an inconsistency between the damages available for
infringing a design patent and the damages available for infringing a
utility patent, copyright or trademark. But the distinction between
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utility and design patent damages was intended by Congress. The

design patent remedy was enacted in response to two Supreme Court
decisions that applied the utility-patent apportionment rule to design
patents as well. See Nike, Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1437,
1441 (Fed. Cir. 1998).7 Congress responded by enacting a new rule of
recovery for design patents in 1887. H.R. Rep. No. 1966 (emphasis
added). Aimed at overruling the Supreme Courts virtual repeal of the
design patent laws, id., the act made a design patent infringer liable
for the excess of [his] profit over and above $250. Act of Feb. 4, 1887,
ch. 105, 1, 24 Stat. 387. As this Court has previously held, the Act of
1887 remove[d] ... the need to apportion the infringers profits between
In Dobson v. Dornan, 118 U.S. 10, 16-18 (1886), and Dobson v.

Hartford Carpet Co., 114 U.S. 439, 443-46 (1885), the Supreme Court
held that a design patent holder could recover only that portion of an
infringers profits that he could prove actually resulted from use of the
infringing design, and not from some other feature or function of the
product. Because the design patent holder could not prove what portion
of the infringers profits resulted from the carpets design, the Supreme
Court awarded nominal damages of six cents. 118 U.S. at 18; see also
Nike, Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1347, 1441 (Fed. Cir. 1998)
(the Supreme Courts holding that a patent holder could recover only
that portion of the infringers profits that were proven to be attributable
to the patented design presented a difficult problem of proof in design
patent cases).
7
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the patented design and the article bearing the design, by creating a
new, additional remedy that applied only in cases of design patent
infringement. Nike, 138 F.3d at 1442; see also id. at 1443 (the
additional remedy created in 1887 for design patents was enacted to
overcome the allocation problem for designs).8
Moreover, Congresss distinction between design patents and
utility patents makes good sense. Unlike design patent infringers,
utility patent infringers may be held liable for copying features that
contribute to only a portion of the demand for the product.
LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 67-68 (Fed.
Cir. 2013). In instances of utility patent infringement, separately
apportioning damages thus makes sense because a total award may
improperly credit the protected feature as a driving factor in sales. Id.
The same is true for copyrights. A plaintiffs recovery for
copyright infringement may be apportioned to exclude profits derived
from the drawing power of non-copyrighted content. Sheldon v.
In 1946, Congress eliminated infringers profits as a remedy for
utility patent infringement. Act of Aug. 1, 1946, Ch. 726, 60 Stat. 778;
see also 7 Donald S. Chisum, Chisum On Patents: A Treatise On The
Law Of Patentability, Validity And Infringement 20.01 (2009). Yet it
left the total profit remedy for design patent infringement unchanged.
8
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Metro-Goldwyn Picture Corp., 309 U.S. 390, 404, 407 (1940); see also
17 U.S.C. 504(b).
Not so with trademark law, design patent laws closest analogue,
Law Professors Br. 6. Like design patent infringements, trademark
infringements are also based on captured sales and routinely result in
disgorgement of the infringers profit. See, e.g. Tamko Roofing Prods.,
Inc. v. Ideal Roofing Co., Ltd., 282 F.3d 23 (1st Cir. 2002). In fact, there
is a strong presumption against apportionment of an infringers profits
in trademark infringement cases. See Mishawaka Rubber & Woolen
Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203, 207 (1942) (In the absence of
his proving the contrary, it promotes honesty and comports with
experience to assume that the wrongdoer who makes profits from the
sales of goods bearing a mark belonging to another was enabled to do so
because he was drawing upon the good will generated by that mark.).
Last, the law professors argue that [i]t is not even remotely
plausible that the shape of the Apple iTunes icon is what causes people
to buy the iPhone, and while the iPhones multiple design patents
happen to be owned by the same company, there is no reason to think
that will always be true. Law Professors Br. 8. But a design patent is
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only infringed if the resemblance of two designs is enough to deceive an

ordinary observer into purchasing the infringing product to which the
design is attached supposing it to be the other. Gorham Co. v. White,
81 U.S. 511, 528 (1872). If the design patent that is claimed to be
infringed covers only a truly insignificant portion of the product, such
as one icon on a modern smartphone, it is not clear how this test could
ever be met. And any concern that one who holds multiple design
patents on the same article could recover an infringers profits more
than once is foreclosed by 289, which prohibits twice recover[ing] an
infringers profits. See Catalina Lighting v. Lamps Plus, 295 F.3d 1277,
1291 (Fed. Cir. 2002). If the patents are held by separate entities, there
is no reason impleader could not be used. See Apple Br. 53.
CONCLUSION
The visual design of a product comes to represent the consumers
understanding of the product itself: its features and functions, its
reliability and brand position in the marketplace, and the subconscious
sensory and emotional elements derived from the total user experience.
Design patents thus protect from misappropriation not only the overall
visual design of products, but the underlying attributes attached to the
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design of the product and embodied in the mind of the consumer by the
products visual appearance. The total profit earned from the infringing
product is thus the correct remedy for design patent infringement:
without the infringing design, there would be no sales and no profits.
Assuming that the jury correctly found that Samsungs products
infringed Apples valid design patents, the district courts judgment
should be affirmed.
Respectfully submitted,
Mark S. Davies
Katherine M. Kopp
(202) 339-8400
Rachel Wainer Apter
Will Melehani
51 West 52nd Street
New York, NY 10019
(212) 506-3353
Attorneys for Amici Curiae
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CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of August, 2014, the foregoing
document was filed with the Clerk of the Court for the United States
Court of Appeals for the Federal Circuit by using the appellate CM/ECF
system which will automatically send email notification of such filing to
all registered users.
Mark S. Davies
ORRICK, HERRINGTON &
SUTCLIFFE LLP
Telephone: (202) 339-8400
Fax: (202) 339-8500
Case: 14-1335
Page: 53
Filed: 08/04/2014
CERTIFICATE OF COMPLIANCE
UNDER FEDERAL RULE OF APPELLATE PROCEDURE
32(a)(7) AND FEDERAL CIRCUIT RULE 32
Counsel for Amici Curiae certifies that the brief contained herein
has a proportionally spaced 14-point typeface, and contains 6,037
words, based on the Word Count feature of Word 2010, including
footnotes and endnotes. Pursuant to Federal Rule of Appellate
Procedure 32(a)(7)(B)(iii) and Federal Circuit Rule 32(b), this word
count does not include the words contained in the Table of Contents or
Table of Authorities.

Mark S. Davies
Telephone: (202) 339-8400
Fax: (202) 339-8500

Apple v. Samsung - Design Professionals Amicus Brief

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Case: 14-1335

CASE PARTICIPANTS ONLY Document: 105

Rachel Wainer Apter

CASE PARTICIPANTS ONLY Document: 105

The full names of every party or amicus represented in the

the caption is not the real party in interest) represented by me is:

All parent corporations and any publicly held companies

that own 10 percent or more of stock of any party or amicus curiae

The names of all law firms and the partners or associates

that appeared for a party or amicus now represented by me in the trial

CASE PARTICIPANTS ONLY Document: 105

ORRICK, HERRINGTON & SUTCLIFFE LLP:

By: /s/ Mark S. Davies

CASE PARTICIPANTS ONLY Document: 105

ATTACHMENT TO CERTIFICATE OF INTEREST

Charles L. Mauro CHFP, IDSA, HFES

James Douglas Alsup, Jr. IDSA

Charles Austen Angell

Alex Bally, FIDSA

Michelle S. Berryman, FIDSA

Emily Fisher (Design Research Associate) at MauroNewMedia

CASE PARTICIPANTS ONLY Document: 105

Eric Beyer, IDSA

Dr. Robert Ian Blaich, FIDSA

Gordon Paul Bruce, IDSA

William Bullock, FIDSA

Bruce Claxton, FIDSA

Robert J. Cohn, IDSA

CASE PARTICIPANTS ONLY Document: 105

George Russell Daniels, L/IDSA

Carroll Gantz, FIDSA

John Leavitt Gard, L/IDSA

Michael Garten, IDSA

Betsy Goodrich, FIDSA

Stephen G. Hauser FIDSA

CASE PARTICIPANTS ONLY Document: 105

James J. Lesko, L/IDSA

Scott David Mason, IDSA

Patricia Moore, Ph.D

Louis Nelson, IDSA, AIGA, SEGD

Christopher J. Parke, IDSA

Nancy Perkins, FIDSA

Gordon Perry, IDSA

Samuel B. Petre, IDSA

Dale Raymond, IDSA, HFES

Raymond W. Riley, IDSA

Brian Roderman, FIDSA

Bryce G. Rutter, Ph.D.

Andrew Serbinski, IDSA

CASE PARTICIPANTS ONLY Document: 105

RitaSue Siegel, IDSA, AIGA, DMI

Paul Specht, FIDSA

Budd Steinhilber, FIDSA

John V. Stram, L/IDSA

Kerstin Nelsen Strom, IDSA

Mathieu Turpault, IDSA

Gary van Deursen L/IDSA

Frank von Holzhausen

CASE PARTICIPANTS ONLY Document: 105

Edmund A. Weaver, L/IDSA

Robert Welsh, IDSA

Stephen B. Wilcox, Ph.D., FIDSA

Angela Yeh, IDSA

CASE PARTICIPANTS ONLY Document: 105