Another Potential Smartphone Patent War Headache for Customs

This is a quick follow up on Monday’s post about the Customs and Border Protection Service and its role in enforcing patent infringement decisions from the International Trade Commission. Depending on what the ITC does in an upcoming case, the CBP might find itself with yet another patent headache from the Smartphone Patent Wars.

You may know that the ITC is due to issue a final decision on whether Samsung smartphones infringe Apple patents. (As I wrote about a few weeks ago, the ITC recently held that some iPhones do infringe Samsung patents.) One of those Apple patents is the famous “rounded rectangles” design patent.

I started wondering, what if CBP has to deal with enforcing that patent? So I took a look at the Administrative Law Judge’s Initial Determination. Here’s a comparison of a couple of figures from Apple’s Design Patent D618,678 with a photo of the Galaxy S 4G:

The ALJ found that the unevenly rounded corners on Samsung’s phone had a “negligible” effect on the overall impression of the phone. He also found that the icons at the bottom of the Samsung phone “blend into the background of the display due to their size and coloring” and don’t create substantial difference between the phone and the design patent.

I’ll leave to you to decide whether you agree that the ALJ’s finding was reasonable. My point is a different one.

Is CBP really going to have to decide when corners are uneven enough to change the “overall impression” of the phone? And what if Samsung changes the colors of the icons at the bottom so that they stand out more? When do they stop “blending into the background of the display”?

As I wrote the other day, CBP needs help to do this kind of thing.

I don’t envy CBP if Apple wins this round at the ITC. I have a feeling they’d much rather deal with finding drugs in grandmothers’ wheelchairs.