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
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: Suggested Citation