Product design gets no legal respect

I just re-read Kurt Eichenwald’s wonderfully researched and written Vanity Fair article The Great Smartphone War. It’s getting harder to find such high quality journalism that is both meticulously researched and enjoyable to read. Eichenwald’s account, like all great works of journalism, puts you in the time and place of the described happenings, in this case the all-out legal and strategic battle between Samsung and Apple. The article goes into marvelous detail about the legal aspects of the case, but what motivated me to blog about it were two things: 1. The cunning nature of Samsung’s bare-knuckled and wildly successful legal strategy; 2. How the U.S. legal system upholds such ruthless legal maneuvrings, much to the detriment of pioneering designers and innovators.

As the article points out, Samsung mastered a pattern of strategic legal maneuvering that consists of: “when caught red-handed [infringing patents], countersue, claiming Samsung actually owned the patent or another one that the plaintiff company had used. Then, as litigation dragged on, snap up a greater share of the market and settle when Samsung imports were to be barred.” As I point out in my recent MIT Sloan Management Review article, this amounts to a higher-order legal strategy that few companies are able to execute with as much success.

The article also points out how Apple’s designers spent nearly two years toiling in secret, at great expense and risk, iterating to achieve a pioneering design. So much effort went into the design of the device’s single button that 50 iterations were made for that single design aspect of the iPhone. According to the article, when one of the Apple designers saw Samsung’s competing offering (the Galaxy S), he could not help but exclaim: “We’ve been ripped off.”

The article points out many great details of the case, and understandably it does not dwell on the legal issues of product design and trademark infringement. In the end, Samsung was ordered to pay nearly a billion dollars in damages, but that may have been part of its legal strategy calculus as it grew market share during litigation. The infringement award would be a fairly trivial amount taking into account all that was to be gained.

As someone who researches and writes in the area of trademarks and product design, it amazes me how little product design gets respected in the courts. So much effort can go into the design and marketing process and the property rights that are obtained often do little to vindicate the designers and risk takers. The appropriate remedy to deter such strategic legal maneuvering at the expense of pioneering designers is to recognize that irreparable harm will arise from the infringement, and that court ordered injunctions to prevent copying need to be the legal standard for pioneering design, such as shape trademarks. Otherwise, strategic copycat followers will always consider the path of least resistance and will consider engaging in strategic infringement.

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