Highlight Reel from Amicus Briefing Recently Filed by 111 Storied Designers Including Dieter Rams and Calvin Klein Regarding Apple’s Pending Appeal in Their Billion Dollar Patent Infringement Lawsuit Against Samsung

Note: I did not write this document. I have simply culled the parts of this briefing I found most poignant. The original briefing is on Apple’s website here, but who has time for that?


Industrial Design (ID) is the professional service of creating products and systems that optimize function, value, and appearance for the mutual benefit of user and manufacturer.

We have based our professional lives on the assumption that designs are patentable and worth enforcing when infringed. Collectively, we are named inventor on hundreds of U.S. design and utility patents.


Ignoring the statute’s clear text, Samsung argues that total profits cannot really mean total profits, because “[u]nder [this] rule, an infringer of a patented cupholder design must pay its entire profits on a car, an infringer of a patented marine-windshield design must pay its entire profits on a boat, an infringer of a patented, preinstalled musical-note icon design must pay its entire profits on a computer, and so on.” […]But Samsung is profoundly confused about the design patent system. The test for design patent infringement requires the possibility of a captured sale.

The jury was instructed as much in this case — that it could only find that Samsung’s phones infringed Apple’s design patents “if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, the resemblance between the two designs is such as to deceive such an observer, inducing him to purchase one supposing it to be the other.” The undersigned take no position on whether the jury’s finding on that point was correct, but Samsung does not challenge it before this Court. Thus, the jury properly awarded to Apple all of Samsung’s profits from selling its copycat devices.


I. History Shows That A Product’s Visual Design Drives Sales And Becomes The Product Itself In The Minds Of Consumers.

Raymond Loewy, who would become the father of American industrial design, first worked on a redesign of Sigmund Gestetner’s “famed old duplicating machine.”

In just five days, Loewy transformed it from a set of exposed and chaotic-looking metals and gears sitting on top of four protruding tubes into a streamlined and aesthetically appealing device.

After Loewy’s re-design, sales soared so high that Gestetner was required to build three additional factories to meet the increased demand, and the company kept the same model for 30 years.

Loewy later performed the same task for Sears, Roebuck & Co.’s Coldspot refrigerator, turning “an ugly machine with a dust trap under its spindly legs” into a “gleaming unit of functional simplicity.” […] Sales increased “from 15,000 to 275,000 units within five years.”

The distinctive bottle, with its contoured shape and the words “Coca-Cola” scrawled in cursive, put a stop to imitators and was “the catalyst that [helped] Coca-Cola become the most widely distributed product on earth.” […] A 1949 study showed that more than 99% of Americans could identify a bottle of Coke by shape alone. […] The iconic shape of the bottle is so important as a brand signifier that today it is reproduced in silhouette form on aluminum cans of Coke.

Customers routinely report that Coca-Cola tastes better when consumed from the contour bottle, though there is no difference in the formula.

Initially, though, American cars were simply horseless, motorized carriages that “didn’t look right” without the horses.

Henry Ford’s Model T was the perfect example: It was notoriously unattractive, yet it sold more than 15 million units. […] General Motors president Alfred P. Sloan understood just “how much appearance and style contributed to the sale of new automobiles,” and in 1927, he developed “a plan to establish a special department to study the question of art and color combinations in General Motors products.” […] It would also lead General Motors to permanently surpass Ford in annual sales.

Embracing industrial design led not only to more beautiful automobiles, but to huge U.S. economic growth. Without changing the underlying technology, engineering or functionality, car manufacturers discovered that they could create many different makes and models simply by changing the automobile’s shape, style and appearance.

Whether the relevant article of manufacture is an iconic soda bottle or an automobile, history teaches that visual design is the way to package, market and sell technological innovation, manufacturing knowhow, product reliability and performance expectations.

II. Design Is Particularly Important For Consumer Products With Complex Technology.

There are over 40,000 industrial designers in the United States, and “many Silicon Valley startups have three co-founders: a technologist, a business person, and an artist [designer].”

The world’s most successful companies view design as a key corporate asset that undergirds their brand and differentiates them from competitors.

Visual design acts as a powerful motivator of consumers’ choices, and Aristotle’s maxim that “all perception starts with the eye” is especially true with today’s consumer products.

Once a product’s image is received on the retina, the mind rapidly processes the image until it reaches what researchers label the “category-based” stage, where consumers — through visual image alone — “recover[] the functional, properties of objects: what they afford the organism, given its current beliefs, desires, goals and motives.”

While verbal or textual information regarding functionality must be processed sequentially, cognitive processing of visual design occurs “all at once” and “can be so quick that we may not be aware of its effects.”

In addition, the human brain recalls memories and emotions attached to visual stimuli (pictures, shapes, colors, products, etc.) for far longer than those attached to text or words.

Immediately upon seeing a product, the mind forms “beliefs about product attributes and performance.” […] Unsurprisingly, “attractive things make people feel good.” […] In scientific terms, cognitive processing of images has “been found to be associated with increased affect,” as “high aesthetics activates the reward center of the brain.” […] “[C]ustomers experiencing positive emotions may feel more predisposed to try new things and may perceive them as having higher value…” […] Thus, emotional responses and connections to products and brands are “among the biggest drivers of repeat business.”

Visual attractiveness can even exceed what is known about the product, “generating particularly rich and favorable inferences about missing product attributes.”

Thus, when a consumer encounters a known product (or an infringing copy), the consumer identifies the look of the product with the underlying functional features. Design “subsumes all the other factors.”

For a product that a consumer does not yet own, it is the visual design, rather than text or lists of features, that dominates print, television, and online advertisements, social media platforms, and e-commerce websites. And it the visual design that consumers encounter while walking on the street observing peers using the product — a powerful factor in purchase decisions.

When a manufacturer copies the design of a successful product, it captures the consumer’s understanding of what the product does and what the product means.

Immensely successful companies use visual design to build their brands, expending time and resources to implement “systematic planning of a consistent aesthetic style that is carried through in everything the company does.”

Design patent infringement therefore steals much more than the design itself — it robs innovative companies of the entire positive mental model that consumers have created for their brand.

III. Section 289 Requires Disgorgement Of An Infringer’s Total Profits On The Infringing Article Of Manufacture.

The Gorham test for design patent infringement thus incorporates the possibility of a captured sale. “[I]f, 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, the first one patented is infringed by the other.”

From the beginning, therefore, iPhone development focused on improving the user experience through industrial design, not introducing new functions.

And the proof, as always, is in the numbers. In the 48 hours following the iPhone’s release, Apple sold 270,000 phones. […] “Strangers would accost you in places and ask if they could touch it — as if you had just bought the most beautiful sports car in the world.”

The iPhone confirms that in the market for complex technology, “attention to a product’s appearance promises the manufacturer one of the highest returns on investment,” especially given that basic “functionality and performance of products are often taken for granted.” […] The iPhone, after all, “[did]n’t even have that many new features — it’s not like Jobs invented voice mail, or text messaging, or conference calling or mobile Web browsing.”

The rectangular face with rounded corners, and the home screen with colorful icons, are the most viewed aspects of the device in print and television advertisements, media coverage, and e-commerce websites. In scientific terms, they are the “canonical view” of the phone — that is, the “ideal viewing perspective for optimal recognition.”

In 1887, design was “an indispensable ingredient in the success of domestic furnishings” and generally focused on “cultural products such as pianos, melodeons, and seraphines for music in the home and printing and daguerreotype processes for visual gratification.” Yet despite the dramatic increase in the importance of industrial design and Congress’s many amendments to the Patent Act since 1887, including eliminating the infringer’s total profits as a remedy for utility patent infringement in 1946, […] Congress has continually maintained the total profits remedy for design patent infringement and expressly reaffirmed it with the adoption of § 289 in 1952.

Instead, it is weakening § 289 as Samsung urges that would dramatically diminish the value of design and dramatically weaken the United States’ competitive position in the world. Design protection “has wide international buy-in.” […] If anything, the total profits remedy is weak compared to the remedies for design theft available around the world.

Design patent infringers in France face not only total profit damages, but also damages reflecting the cost savings of promotional investments resulting from the pirated design, prison sentences of up to three years, and temporary or permanent closure of their business. […] Similarly, in Italy design patent infringers face permanent injunctions, attachment and destruction of the counterfeited goods, and criminal sanctions, in addition to money damages.


The judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

Rachel Wainer Apter 
Mark S. Davies

Date August 4, 2016