During the first half of 2017, the Supreme Court will hand down its first judgement on a design case for over 100 years.

For design aficionados like me, it would have been interesting if the case had been based on a point of law regarding the scope of a design, or how a design and an alleged infringing article are assessed with respect to each other.  However the appeal to the Supreme Court is a far more commercial one: how much damages does Samsung owe to Apple?

Back in 2012, Samsung was found, through the sale of some of their smartphones, to infringe three of Apple's design patents for their iPhone.  These related to the round-cornered front face, the bezel of the iPhone and the coloured grid of 16 icons on the home screen.  Apple was awarded $399 million in damages for the infringement of the design patents, with the assessment of the damages being based on the total profits of Samsung's smartphones.

In the Supreme Court, Samsung argued that the awarding of full profits for design patent infringement is not the correct assessment as this does not take into account the fact that a typical device has up to hundreds of thousands of patented features to make it function fully.  This therefore devalues the other important patents that cover the smartphone.

On the other side, Apple argued that strong design protection (and thus full profits damages) spurs creativity and innovation, and that reducing the damages would risk the future of design innovation.

It thus remains to be seen whether the Supreme Court wishes to depart from previous case law or to maintain a strong deterrent against infringement.