Jury Dials Up Record-Setting Damages Verdict for Design Patent Infringement
This trial was the third in a long and complex case that includes an intervening decision by the U.S. Supreme Court. Two earlier trials established Samsung's liability for infringement. The only issue in the 2018 trial was Apple's damages under a special damages provision for design patent infringement. 35 U.S.C. § 289 provides that whenever an infringer "applies" a "patented design" to "any article of manufacture," the infringer owes the patentee damages "to the extent of [its] total profit … ." The Supreme Court held that the "article of manufacture" under Section 289 could be the entire infringing commercial product, or parts of it, but declined to prescribe a standard for determining the "article of manufacture." Several courts, including the California District Court, have adopted a four-part test for determining the "article of manufacture" proposed by the Solicitor General in a Supreme Court amicus brief.
Applying that four-factor test, the Apple jury found a different "article of manufacture" for each of the design patents. For Apple's graphical user interface design, the entire phone was the "article of manufacture," and the jury thus awarded all of Samsung's profits for phones that infringed that design. The other two patented designs covered a rounded rectangular surface plus a bezel. For those, the jury found that the relevant "article of manufacture" was not the entire phone, and thus awarded only partial profits.