Supreme Court Should Not Reward Efficient Infringement in Apple v. Samsung

Supreme Court Building, Washington, D.C.In Apple v. Samsung, the Supreme Court is presented with a classic issue of statutory interpretation in the case that has come to exemplify the Smart Phone Wars. In one of the many lawsuits brought by Apple against Samsung after Samsung rejected Apple’s offer to license its patents, a jury found Samsung liable for infringing Apple’s design patents on the iPhone. The statute clearly provides that Samsung’s “total profit” should be awarded for its infringement of Apple’s design patents on the iPhone.

Samsung is now arguing before the Supreme Court that the statute should be “interpreted” by judges according to policy concerns that patent owners should only be awarded damages for their specific contribution to a device that has multiple features. Although Samsung claims this is a new concern about patent damages given the invention of smart phones, it is not. Infringers have raised similar concerns for over a hundred years about such multi-feature inventions as the sewing machine in the 1850s and the light bulb and electrical distribution systems in the 1880s and 1890s, to name just a few patented inventions that have been the subject of innumerable “patent wars.”

In the oral argument, the Justices appeared amenable to Samsung’s argument that the statute be construed to accommodate its concerns. This is unfortunate, because in past cases, the Supreme Court has instructed litigants who have presented broader policy arguments about clear statutory language that they should address Congress to have the statutes repealed or amended. When statutory language is clear, it is the long-recognized province of the courts to apply the statute, not to rewrite the statutory language. This is especially important when the Court is asked to judicially rewrite a statute by a defendant like Samsung that made a strategic decision to infringe another company’s patented innovation, because this was deemed to be cheaper for it than negotiating with Apple and ultimately accepting Apple’s license.