Federal Circuit Leaves Open the Question of Whether an Award of Profits Is a Question of Law in a Design Patent Case

In a precedential opinion handed down this morning, Columbia Sportswear North Am., Inc. v. Seirus Innovative Accessories, Inc., the court (1) affirms a judgment that the claims-in-suit of Columbia's utility patent are invalid; (2) reverses a grant of summary judgment that Seirus infringed Columbia's design patent; and (3) remands for a new trial on design patent infringement.  As an incident to (2) and (3), the court also vacates the $3 million jury award, stating (p.19):

The parties raise additional issues regarding the court’s damages award under 25 U.S.C. § 289. For example, Columbia argues that the § 289 remedy is one of disgorgement that should be tried to the bench. And there is a significant issue as to whether the proper article of manufacture in this case should be the HeatWave product actually sold or the fabric encompassing the design. Both of these issues are important, but we do not reach them because we have vacated the infringement finding. 

So, the court breaks no new ground, but does leave two important questions open--namely, whether an award of the defendant's profits is question of fact for the jury or a question of law for the judge (I'm inclined to think it is the latter, see, e.g., here); and how to determine the relevant "article of manufacture" for purposes of § 289.  For discussion of the article of manufacture issue, see, e.g., Professor Burstein's article here.