Model T

If Henry Ford copied GM’s design for the spiffy 1926 Chevy—and was successfully sued over it—how much of his profit from sales of a new model would he owe GM?

All of it, according to 111 industrial designers who filed a U.S. Supreme Court brief yesterday in the blockbuster Apple vs. Samsung smartphone design patent case.

But if the Chevy had copied any of Ford’s Model T technology covered by one of Ford’s 161 U.S. patents, GM wouldn’t owe Ford all of its Chevy profits.

Why the disparity? Because, the brief’s authors say, consumers would have so valued the Chevy design that they would have associated the car’s entire functionality with that design.

“Modern cognitive science” tells us as much, they say. According to the brief, “A product’s visual design becomes the product itself in the minds of consumers.”

In the case of GM, the popularity of the Chevy let it quickly surpass Ford—which had sold 16.5 million Model T cars from 1908 to 1927—in sales because, the designers argued, it was  “bold and colorful” compared to the “notoriously unattractive” black Model T.

Underlying the calculation is a question:  Is design patent law on a different planet than utility patent law?

It certainly reflects a concern expressed at an Internet Alliance breakfast conference Aug. 2: Maybe design patent law isn’t patent law at all and deserves its own regime?

Patent law is based on the Constitution’s Intellectual Property Clause, which says nothing about the minds of consumers.

Trademark law was installed under the Commerce Clause to address another aspect of the consumer mind—that people should know the source of their goods and services. There are differences between design patents and trademarks—but maybe not so many as between design and utility patents.

The designers’ brief is one of many to be considered by the high court in the Oct. 11 showdown between Samsung and Apple. Specifically, the court will consider what a jury should be told when infringed patents cover only design aspects of a multi-component, multi-function device. It will focus on Section 289 of the Patent Act, which allows a jury to award design patent infringement damages “to the extent of [the infringer’s] total profit.”

Perhaps another of the briefs will force the court to go beyond Section 289 and consider if design patent law is from Mars, and utility patent law is from Venus.