Yesterday, in a unanimous opinion, the United States Supreme Court broadened what can be considered an “article of manufacture” for design patent infringement. See Samsung Electronics Co. v. Apple Inc., No. 15-777, — S. Ct. —, 2016 WL 7078449 (Dec. 7, 2016). “Patent protection is available for a ‘new, original and ornamental design for an article of manufacture.’” Id. at *2 (quoting 35 U.S.C. §171(a)). This is often referred to as a design patent. A design patent is “infringed if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same.” Id. (citation and quotation omitted). Damages for design patent infringement are permitted under 35 U.S.C. § 289. §289 states that an infringer “shall be liable to the owner to the extent of his total profit, but not less than $250[.]” 35 U.S.C. § 289. The Supreme Court provided a two-part test for “[a]rriving at a damages award under §289[.]” Id. at *4. “First, identify the ‘article of manufacture’ to which the infringed design has been applied. Second, calculate the infringer’s total profit made on that article of manufacture.” Id.
In the current case, Apple sued Samsung in 2011 for infringing three of its design patents relating to its iPhone. Id. at *4. The design patents at issue covered a black rectangular front face with rounded corners, a rectangular front face with Continue reading