How Should Damages Be Calculated for Design Patent Infringement?

Abstract

The Supreme Court's perfunctory opinion in Samsung Electronics Company v. Apple, has left to the lower courts the difficult task of fashioning a reliable test for the disgorgement of profits under the design patent remedies provision. But Samsung has also exposed the need for a broader conversation that reevaluates whether the special remedies provision ought to be retained in its current form, and what the objectives of the design patent remedies provisions should be. This paper critically evaluates proposals that attempt to implement the Court's Samsung ruling under the existing provision, while also seeking to provoke a conversation about alternatives to that provision.