The legal battle between Apple and Samsung over design patent infringement seems to pit the creatives against the techies but, when it comes to building brands, art and science need to work together
And so the battle of the rounded rectangles approaches its endgame. The long-running lawsuit between Apple and Samsung – the former seeking redress for patent infringement – has now been referred to the US Supreme Court. It is the first time in decades that the country’s highest legal body has been asked to adjudicate on a design patent issue.
It is a case that has received surprisingly scant attention internationally. That’s perhaps because it is playing out in another country, under a law that doesn’t hold elsewhere. Perhaps because the UK’s own, local chapter of what’s been described as “a worldwide constellation of litigation” between the two companies concluded years ago (it found that Samsung did not copy the iPad). Plus, it’s complicated, as testified by the multiple appeals against the initial $1bn award in Apple’s favour.
But the Supreme Court’s judgment on the issue – namely, what portion of a copied product’s profits can be awarded in damages to the patent holder – will affect not just the businesses in question but any company that invests in design.
It is this broader, some might say existentialist, threat – the value of design in the eyes of the law, if you like – that moved 111 of the world’s leading designers to sign a letter last month supporting Apple’s case. Lord Foster, Sir Paul Smith, Sir Terence Conran, Calvin Klein, Dieter Rams and Dries van Noten are among the signatories.
They have chosen to add their weight to the debate not from some deep-seated affection for the Apple brand – indeed, they are at pains to be brand-agnostic – but rather to support the principle, first established by the US Congress 129 years ago, that “it is the design that sells the article”. And, by turn, that profits accrued by copycat products should be forfeited.
In doing so, they find themselves lined up against tech giants, including Google and Facebook, that are already siding with Samsung in the interests of freer innovation protocols and consumer choice.
So on one hand we have a first-class brand case study in play. There’s half-a-billion dollars of cash on the table (the $1bn was cut on appeal) and more in reputational gain or loss for these two behemoths.
On the other, we now have a broader battle between the design community and Big Tech, between creatives and The Man. Exaggerated as that is – there is plenty of nuance on both sides of the argument and it’s worth noting that Samsung has successfully counter-sued Apple elsewhere – that narrative appeals, if only because it echoes broader anxieties in the brand-building and, especially, the advertising business. Just who is wearing the trousers these days: creative dude or tech guy? Are we poets or are we plumbers?
The Cannes Lions, born as an offshoot of the Cannes Film Festival, has been annexed by the big digital businesses just as surely as marketers’ media plans have. Media is bought programmatically. Art is giving way to science. But it is also true that the industry tide may be turning back towards broadcast, that Nike’s Olympics spot was one of its best ever, that Adam & Eve/DDB still rocks. Science must still yield to irresistible art.
For all the false opposition of our industry, this is the era of “both”, and so a partisan reading of this case is unhelpful. Apple and Samsung are best served by a legal conclusion that reverts their gaze to the day job and preserves an appropriate degree of protection for their – and others’ – proprietary design leaps.
It’s far better for us all that two of the world’s biggest brands spend their money investing in design, the oft-forgotten core of brand-building, than on costly legal action.
Laurence Green, Founding partner, 101