Back in May, I wrote on this blog that the Apple v. Samsung case featured one fascinating development: The potential to get an injunction via design patent infringement that was unavailable for utility patent infringement. I still think that's easily the most significant issue for the patent community, but the patent community isn't driving the narrative right now. The high tech community is.

And right now the high tech community is interested in an evidentiary ruling. Judge Lucy Koh of the U.S. District Court for the Northern District of California barred Samsung's attempt to say that the iPhone design was "inspired" by Sony's work. And Samsung's response: Leaking that information to the press. The high tech community loves this argument about who copied from whom.

I'm not only a writer for an intellectual property journal but also a high tech industry veteran of sorts, and the who-copied-whom question, especially as it relates to Apple, has a history. I was buying personal computers in the 1980s when Apple was claiming its creativity in its user interface. But everyone knew they copied work done at the Xerox Palo Alto Research Center.

My high-tech side wants to talk about the evidence; my IP side wants to talk about design patenting. So what I'll do is to try to connect the two streams of thought. And I'll do it through a revisit to what happened in this case in April, when it was before the Federal Circuit.

I attended the oral argument in the case and Judge William Curtis Bryson did something that I had never seen there: He took time before arguments began to chastise counsel for both sides on the extent of the redactions in the record.

"It's not clear to me that this is glow-in-the-dark protectable material," Bryson said. "These do not strike us as being core confidentiality concerns."

The court's primary concern was that information about licensing activities, market share, and in particular, survey evidence, would matter to its injunction analysis, and the parties were doing everything they could to withhold that information.

Now that the case is being tried, the same withholding issue appears to have hit Koh. The district court said Samsung was trying to enter the Sony-related evidence too late in the process. Why did Samsung wait? 

So my questions are: Are the parties' actions in this case just par for the course in patent infringement cases? Or is there something about product design that is causing this behavior?  Is it confined to product design for mobile phones or would it be the same for other products in other industries? What exactly is leading these companies to rely on extreme assertions of confidentiality?

Obviously, patent case litigants routinely limit what they divulge to the other side. But if you're Apple asking the Federal Circuit to uphold an injunction, why would you take the risk of angering the court by withholding evidence (it seems) that suggests that consumers make buying decisions based on product design? And if you're Samsung with prior art evidence, why would you withhold it from the trial court until this last minute? Each party was ultimately disadvantaged by the decision to withhold evidence. Why did they not see the disadvantage coming?

The parties' attorneys in this case are experienced and competent. Yet they seem to have treated a case about design patent infringement by erring on the side of under-disclosure. Maybe Apple's survey evidence showing the importance of design also showed the unimportance of functional elements covered by other patents. And the Sony-copying evidence Samsung gave to the press: Could it possibly implicate Samsung's smartphone design decisions?

I'm sure there are theories out there, and I'd love to hear them. Post a comment and I'll respond. 

But I think one point is clear: We're in uncharted waters when design patent litigation is the playground of the very biggest players in one of the world's hottest industries. It probably means this case is not an aberration, but rather the first fight in a new battleground.

If Apple loses, other design patent holders (car manufacturers?) will create surveys that isolate the importance of design on consumer purchase decisions without divulging non-design information. If Samsung loses, corporate product designers will start making log books recording their decisions, as electrical engineers have been doing for years to protect utility patent inventions. 

Either way, I have a new toy to write about. "So I got that goin' for me," as Caddyshack's Carl Spackler once said, "which is nice."

For those of you who want to hear my argument for the possible increased importance of design patents as a result of this case, Ananda and I discussed the Federal Circuit's decision in Episode 22 of the "Do You Copy?" Podcast.