Hat tip to Sarah Burstein and Patently-O for flagging this one. The case is Systems, Inc. v. Nordock, Inc., which I blogged about when the Federal Circuit issued its opinion in September (see here). Like Samsung v. Apple (see my most recent blog post here), the cert petition here asks the Court to consider whether Patent Act § 289 requires the disgorgement of a design patent infringer's entire profit from sales of articles embodying the protected design, or only the portion of those profits that are attributable to the design itself. The questions presented are:
1. Where a patented design is applied to only a component of a product, should an award of infringer's profits be limited to those profits attributable to the component?
2. Is the Federal Circuit's interpretation and application of 35 U.S.C. § 289 inconsistent with this Court's prior precedent?
It will be interesting to see if the Court grants cert in one or both cases, and if so whether it will find a way to interpret the statute that is economically rational--or instead leave the matter for Congress to correct.
Update: And while on the topic of the Samsung v. Apple case, over on FOSS Patents Florian Mueller reports that Apple has now filed its respondents' brief in opposition to cert (almost two weeks early!). And though it's not relevant to design patents, Florian also reports this news article stating that a jury in the Eastern District of Texas has awarded VirnetX $625 million against Apple on remand from the 2014 VirnetX v. Apple appeal (see my blog post here). It will be interesting to see if this one holds up.
Further Update to the VirnetX v. Apple Verdict: Patently-O has posted the verdict form here. As is standard practice in the U.S., there is nothing in the form to indicate how the jury arrived at its numbers ($334,908,773.73 for 2009-13, and $290,725,067.31 for "this infringement through the time of trial"). In the past I have wondered whether it would be desirable in patent (and perhaps other) cases if courts submitted to the jury a form for a general verdict with special interrogatories, pursuant to Federal Rule of Civil Procedure 49(b), so we would have a clearer understanding of what the basis is for a damages award (rate, base, etc.) . . . but to my knowledge this practice is rarely used in this context. Maybe it wouldn't be worth the added effort.
Update: And while on the topic of the Samsung v. Apple case, over on FOSS Patents Florian Mueller reports that Apple has now filed its respondents' brief in opposition to cert (almost two weeks early!). And though it's not relevant to design patents, Florian also reports this news article stating that a jury in the Eastern District of Texas has awarded VirnetX $625 million against Apple on remand from the 2014 VirnetX v. Apple appeal (see my blog post here). It will be interesting to see if this one holds up.
Further Update to the VirnetX v. Apple Verdict: Patently-O has posted the verdict form here. As is standard practice in the U.S., there is nothing in the form to indicate how the jury arrived at its numbers ($334,908,773.73 for 2009-13, and $290,725,067.31 for "this infringement through the time of trial"). In the past I have wondered whether it would be desirable in patent (and perhaps other) cases if courts submitted to the jury a form for a general verdict with special interrogatories, pursuant to Federal Rule of Civil Procedure 49(b), so we would have a clearer understanding of what the basis is for a damages award (rate, base, etc.) . . . but to my knowledge this practice is rarely used in this context. Maybe it wouldn't be worth the added effort.
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