Editor's Note: The following guest post was authored by Thomas P. McNulty, Counsel at Lando & Anastasi LLP. In last year’s Samsung v. Apple decision, the Supreme Court held that the “article of manufacture” for which total profits are awarded upon a finding of design patent infringement may be either “a product sold to a consumer [or] a component of that product.” The Supreme Court declined to establish the test for identifying the article of manufacture, instead remanding for consideration by the court below.
Given that the Supreme Court substantially changed the interpretation of damages under 35 U.S.C. § 289, it would seem clear that a new damages trial would be required. Nothing in litigation, however, is so simple. Instead, upon remand, the district court considered the parties positions on whether a new trial is warranted. In the meantime, we will examine the procedural questions addressed by the district court in connection with its order requesting further briefing.
