The Outer Bounds of Bilski

Tip of the hat to Patently–O for interesting reporting on the latest round in the endless legal struggle between Samsung and Apple, two titans who promise to be engaged in lawsuits until the legal system itself implodes.

The most recent bout has Samsung filing a petition for writ of certiorari seeking clarity for the admittedly murky regime of design patents, and, in particular, whether and how principles of claim construction should apply to patents which often contain little text other than “look at the enclosed picture.”

Of interest to us is Samsung’s argument—one of many—that a protectable ornamental design cannot include “basic shapes or concepts,” such as colors. To make this argument, Samsung analogizes to the “abstract ideas” rendered verboten by Bilski and Alice:

The statute does not define what constitutes a protected “ornamental” design, but it cannot protect “abstract ideas” or “physical phenomena” like basic shapes or concepts, Bilski v. Kappos, 561 U.S. 593, 601 (2010), and there is a well–accepted contrast with unprotected “functional” features, see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 148 (1989).

This may be an indication of a new expansion of the doctrine of unpatentability, one likely to be argued in other courts, even if the Supreme Court does not grant cert.