[UPDATE] An earlier version of this post was based on the (false) assumption that last week's widely-reported amicus brief by 111 designers and design educators was the only amicus brief supporting Apple. This misperception was due to the delay with which both the court's own website and the SCOTUSblog get updated. Actually, a total of 10 briefs were filed in support of Apple. Furthermore, the first version of this post noted an "artsy font" used on the title page of the designers' brief. However, that font was only used in the version published on Apple's website. I've now updated this post and may still have been first to upload (to Scribd) all of these amicus briefs. [/UPDATE]
An amicus curiae brief filed with the Supreme Court by 111 designers and design educators in support of Apple's design patent damages position against Samsung last week drew lots of attention. Understandably so, as Apple indeed managed to get support from a group that included some very famous people such as Calvin Klein and Norman Foster.
The brief was authored by a team of Orrick appellate lawyers.
Two months ago I commented on various amicus briefs filed in support of Samsung as well as some filed in support of neither party, most notably the position taken by the U.S. government. In that post I wrote that Apple might still orchestrate something big to show support for its position that the infringement of a design patent entitles its holder to an unapportioned disgorgement of the infringer's profits made with multifunctional, complex products. But I expressed doubts.
While Apple has clearly exceeded my expectations in terms of the individuals supporting its cause (great work, no doubt), support from companies is about in line with my expectations, especially since Apple's position appears to be an outlier position among large U.S. technology companies. The following companies and industry bodies support Samsung: The Internet Association, The Software & Information Industry Association, Dell, eBay, Facebook, Garmin, Google, HP, Lenovo, Motorola Mobility, Newegg, Pegasystems, Red Hat, SAS Institute, Varian Medical Systems, Vizio; and the Computer & Communications Industry Association, which has been a thought leader on this issue.
Apple garnered support from companies that are mostly non-tech/low-tech: Crocs, Nordock, Tiffany, Bison Designs, Deckers Outdoor Corporation, Design Ideas, Kohler, KRC Capital, Lutron Electronics, Method Produts, Novo Nordisk, Nuelle, Nuvasive, Oakley, Sun Products, SZ DJI Technology, Thule Group, and Cleveland Golf. Many of those companies operate in industries where a product is typically covered by only one design patent, and products with a very substantial part of their value lying in designs.
The only industry association backing Apple is ACT, which has always positioned itself as a voice of small innovative businesses though its funding came from large organizations, with smaller companies being offered free memberships. A few years ago ACT all of a sudden started positioning/portraying itself as an association of app developers. I'm an app developers and don't see my interests being represented by them, and especially not in this context here.
Companies (and industry associations) are really important in a case that has huge economic implications. Individuals, no matter how famous and well-respected, can say whatever they want but they don't have to defend against design patent infringement claims by others. At most, the companies they're affiliated with will have to defend, but those companies can then disown whatever the individuals wrote in their personal filing. Take Calvin Klein, for example: he sold his company a decade and a half ago.
Not only have Apple's lawyers been unable to counterbalance Samsung's tremendous support from industry but they also have far fewer law professors on their side. There's 50 of them in Samsung's camp (a number that has increased at every stage of proceeding). Apple has five of them, and while it's not just about a headcount, there's really no basis for a claim that those five counterbalance Samsung's 50. However, the notoriously right holder-friendly American Intellectual Property Law Association (AIPLA) also supports Apple, as does a local organization of the same kind, the Boston Patent Law Association.
Let's not forget about another important group of amici: public-interest advocates. I'm sometimes skeptical of some of those organizations and of what they write, but if a party has zero support from that group and no support from industry, then it could just be that its positions run counter to the public interest. Designers and IP lawyers have their professional interests just like Apple is pursuing certain objectives in this litigation. But what's good for the economy at large? For society? Hardly any neutral party appears to agree with Apple, while Samsung got support from representatives of minorities and rural communities, the Electronic Frontier Foundation,Public Knowledge, R Street Institute, American Antitrust Institute, IP Justice, Engine Advocacy, and the Software Freedom Law Center.
Obviously, amicus curiae briefs are just a factor that can influence decisions and the public perception, but amici don't make the law. I'll talk about the legal arguments made by Apple and its amici later this month. For now I just wanted to share my observations on who supports, and especially who doesn't support, Apple's positions in this case. The PR impact of the 111 designers' brief is one story. The actual weight thrown behind Apple's legal position is another. There's more weight here than just the designers, but for the reasons outlined above, Samsung has far more (and far more credible) support from large technology companies.
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