Design Patent Damages: A Critique of the Government’s Proposed 4-Factor Test for Determining the ‘Article of Manufacture’

IP Theory Indiana University Maurer School of Law, Forthcoming

18 Pages Posted: 25 Feb 2019

Date Written: February 5, 2019

Abstract

The U.S. Government, in its amicus curiae brief before the Supreme Court in Samsung v. Apple, proposed a 4-factor test for determining the "article of manufacture" under 35 USC 289 that awards total profit for design patent infringement. This critique of the 4-factor test concludes that it is seriously flawed, and proposes alternative factors that are more relevant to the article of manufacture determination.

Keywords: design patent, total profit, damages, Government test, 35 USC 289, article of manufacture

JEL Classification: K

Suggested Citation

Saidman, Perry, Design Patent Damages: A Critique of the Government’s Proposed 4-Factor Test for Determining the ‘Article of Manufacture’ (February 5, 2019). IP Theory Indiana University Maurer School of Law, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3341341 or http://dx.doi.org/10.2139/ssrn.3341341

Perry Saidman (Contact Author)

Saidman DesignLaw Group ( email )

8601 Georgia Ave.
Suite 603
Silver Spring, MD 20910
United States

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