By Kristi Ellis
with contributions from Maghan McDowell
 on August 15, 2016

WASHINGTON — Some 40 additional designers from a variety of cross-cutting fields have lined up in support of Apple Inc., according to the firm representing the first wave of designers, by adding their names to an online petition and joining a long list of designers who filed a brief at the Supreme Court in a patent infringement case involving rival Samsung Electronics Co. Inc.

The Supreme Court case, Samsung Electronics Co. Inc. vs. Apple Inc., is a culmination of years of legal wrangling over patents between the two electronics giants.

Earlier this month, several high-profile fashion designers and luxury brands joined scores of other designers in signing a formal amicus brief that contained 111 signatures in support of Apple filed at the High Court.

Designers such as Calvin KleinAlexander Wang, Nicolas Ghesquière, Dries Van NotenAlber Elbaz, Sir Paul Smith and Chitose Abe of Sacai, were part of the original group of designers signing the brief. They were quickly followed by separate briefs filed by Tiffany & Co., Adidas AG and Jenny Yoo, and another filed by Crocs.

Now, the firm representing the designers in the amicus brief has expanded its web site to include a live petition where new designers can sign and voice their support for Apple, as well as the current statute on the books for design patents.

“The reason we set up the site is because there is still significant, continuing interest,” said Charles Mauro, founder and president of Mauro New Media, adding that names can no longer be added to the formal brief at the Supreme Court. “I think very simply it represents the fact that the global design community now understands that this case is a lot more than two high-tech giants going at each other in terms of intellectual property litigation.”

The names of the 40 new signatures on the new petition have not been publicly listed on the site as of yet, but Mauro said he expects to reveal them soon.

Several executives from Jaguar and Land Rover have signed the petition, in addition to major international and U.S. industrial and product design firms, he said.

Mauro said he believes the firm will acquire an additional 2,000 signatures “without a lot of effort.”

“There is tremendous interest on the part of the design community — this goes way beyond the fashion folks — with respect to the case and the implications of the ruling,” he said. “A negative ruling in this case has the very significant potential to damage design overall.”

The outpouring of concern from designers about the implications of the case, were Samsung to prevail, stems from a lawsuit that Apple filed against Samsung in 2011 charging the South Korean electronics company with infringing on its patents and directly copying the design elements and technologies of its iPhone.

A jury in California found in favor of Apple in 2012, awarding it more than $1 billion. That patent infringement verdict was later upheld by the U.S. Court of Appeals for the Federal Circuit in Washington, but the award was reduced.

Samsung paid Apple $548 million in December, but decided to appeal to the Supreme Court, which agreed to hear the case in March.

Samsung is challenging whether it is liable for $399 million out of a total of $548 million it has paid to Apple so far.

In its appeal to the High Court, Samsung said that the $399 million was awarded to Apple based on infringement of three patents in question — a black rectangular round-cornered front face, a bezel and a colorful grid of 16 icons. Those patents, Samsung alleged, cover only “specific, limited portions of a smartphone’s design.”

Under discussion in the case is section 289 of Title 35 of the United States Code, which states when a design patent is infringed upon, the offending party must pay the owner the full profit made from sales of the offending design.

Samsung is challenging that statute. The federal circuit court, Samsung asserted in its appeal, held that Apple is entitled to the entire profits of the copied phone sales “no matter how little the patented design features contributed to the value of Samsung’s phones.”

Samsung asked the court to consider the legal question of whether total profits from the sale of an infringed product should be awarded to a company if the design patent applies only to the component part of a product. The court agreed to take up that question and oral arguments will begin on Oct. 11.

Mauro argued previously that Samsung is “asking the court to change the way infringers are asked to compensate those that are infringed” which he contended will “dramatically reduce the impact of design patents and dramatically increase the complexity of design patent litigation.”

He said if Samsung were to prevail, it would essentially remove the major disincentive — full disgorgement of profits  – to copy products designs and lead to a “massive influx of copycat products in the U.S.”

The implications of the case continue to generate concern from the fashion industry.

A spokesman for Crocs, which filed its own brief supporting Apple as reported, recently told WWD in an e-mail that its “creative and novel designs have been instrumental to success.”

“As such, Crocs relies on laws that protect and deter copying of its innovative designs,” a spokesman said. “The total-profits remedy of [the statute] is critical in this regard and Crocs feels strongly that it should remain intact.”

Crocs thus filed its brief to highlight this issue and the importance of the total-profits remedy to promoting design, deterring copyists and protecting innovation in numerous industries outside of the smartphone context, including the footwear industry in which Crocs has been a leader for the past 14 years.”

Ewa Abrams, associate general counsel and chief privacy officer at Tiffany & Co., which filed a joint brief in the case with Adidas and Jenny Yoo Collection as reported, said in an e-mail that the company “is distinguished by innovative design, which has long been intrinsic to the value of our products.”

“In fact, Tiffany has protected its original works since our first Design Patent was filed in the 19th century,” Abrams said. “Today, we hold a growing portfolio of Design Patents. Whether jewelry or technology, preserving the letter and spirit of the Design Patent Act, as it has been for well over a century, is critical to ensure design innovation remains protected.”