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Communications of the ACM

Legally speaking

Disgorging Profits in Design Patent Cases

Disgorging Profits in Design Patent Cases

Credit: Alicia Kubista / Andrij Borys Associates

As reported in my March 2017 column, the U.S. Supreme Court struck down a $399 million award against Samsung for infringing three Apple design patents. Samsung's win concerned an important but narrow issue. The Court ruled that Apple is entitled to be awarded Samsung's profits from sale of the article(s) of manufacture to which the protected designs were applied. However, lower courts erred in ruling that the relevant article of manufacture was necessarily the whole smartphone; it could instead be one or more components of the smartphones.

The Apple v. Samsung case has been sent back to the trial court to determine, first, to what relevant article(s) of manufacture were the patented designs applied, and second, what part of the $399 million total profits Samsung made from sales of the infringing smartphones is attributable to the relevant article(s) of manufacture. The Court offered no guidance about how lower courts should make either assessment.


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