May 18, 2015: Today the Federal Circuit decided the appeal in the first Apple v. Samsung case, upholding a majority of Apple’s damages award, namely, damages attributable to patent infringement.  However, the court reversed the damages attributable to trade dress protection, ultimately finding that Apple’s uregistered trade dress in its older iPhones was functional and therefore not protectable under trade dress law:

Apple has failed to show that there was substantial evidence in the record to support a jury finding in favor of non-functionality for the unregistered trade dress on any of the [required] factors. Apple fails to rebut the evidence that the elements in the unregistered trade dress serve the functional purpose of improving usability. Rather, Apple focuses on the “beauty” of its design, even though Apple pursued both “beauty” and functionality in the design of the iPhone. We therefore reverse the district court’s denial of Samsung’s motion for judgment as a matter of law that the unregistered trade dress is functional and therefore not protectable.

On the up side, the Federal Circuit’s decision is a strong win for patent rights, and design patent rights in particular.
What’s the relevance to video and computer games?  Consider this.  Video game designers often rely on trade dress to protect the look and feel of the game as a brand or source indicator, in addition to relying on copyright protection.  However, to the extent the trade dress is essential to the use or purpose of the video game or it affects the cost or quality of the video game, then a court could ultimately find that the trade dress is functional and therefore not protectable.  The result?  In order to ensure that you are fully protecting your computer game, design patents for important user interface features should not be overlooked.
The case is Apple Inc. v. Samsung Electronics Co. Ltd. et al, Case 14-1335, Fed. Cir. May 18, 2015.  Read the full decision here.