Courts Are Filling In Justices' Design Patent Remedy Void

Law360 (April 23, 2019, 2:58 PM EDT) -- On Dec. 6, 2016, the U.S. Supreme Court decided Samsung Electronics Co. Ltd. v. Apple Inc., its first design patent case in 150 years. This appeal involved the standard for assessing the “infringer’s profits” as a measure of the patentee’s compensation under the special design patent remedy found in 35 U.S.C. § 289.

The Supreme Court in Samsung v. Apple held that determining an infringer’s profits with respect to a product that is the subject of a patented design under Section 289 involves two steps. First, the court must identify the relevant “article of manufacture” to which the infringed design has...

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