Design Patent Damages: Determining the Relevant Article of Manufacture

Applying the Four-Factor Test, Court Treatment, Calculating Total Profit

A live 90-minute CLE webinar with interactive Q&A

Thursday, September 6, 2018

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926

This CLE webinar will provide guidance to design patent counsel on determining the article of manufacture and design patent damages. The panel will review the Supreme Court's decision and examine 35 U.S.C. 289, the four-factor test and how the courts are determining the article of manufacture.


The Supreme Court interpreted 35 U.S.C. 289 in the ongoing Samsung Electronics Co. v. Apple battle. Under section 289, an infringer is liable to the extent of his total profit for sales of any article of manufacture to which the patented design has been applied. The Court held an infringing article of manufacture may be an end product as sold or a component of the end product.

However, the Court left open the question of how to determine the article of manufacture. The United States’ amicus brief delineated a four-factor test for determining the article of manufacture. Recently, district courts have applied the four-factor test.

As applied by the district court in the Samsung case on remand, when establishing design patent damages, the patentee bears the burden of identifying the article of manufacture by a preponderance of the evidence, but the infringer may counterargue that the article of manufacture is less than the entire product. It is essential to understand the four-factor test and how the courts are applying it.

Listen as our authoritative panel of patent attorneys reviews the Supreme Court's opinion and examines the four-factor test and how courts are applying it. The panel will also discuss determining the article of manufacture and design patent damages going forward.



  1. §289
  2. Article of manufacture
    1. Supreme Court in Samsung v. Apple
    2. DOJ's four-factor test and allocation of burdens
    3. District court rulings
  3. Determining the article of manufacture and design patent damages going forward


The panel will review these and other high profile issues:

  • What constitutes the relevant article of manufacture?
  • How are the courts applying the four-factor test?
  • What strategies can counsel use for determining the article of manufacture or minimizing the scope of infringing product?


Cheek, John
John J. Cheek
Associate General Counsel & Chief IP Counsel
Durkin, Tracy-Gene
Tracy-Gene Durkin

Sterne Kessler Goldstein & Fox

Ms. Durkin heads the firm’s Mechanical and Design Patent Group. With nearly 30 years of experience obtaining...  |  Read More

Ferrill. Elizabeth
Elizabeth D. Ferrill

Finnegan Henderson Farabow Garrett & Dunner

Ms. Ferrill focuses her practice on all aspects of design patents, including prosecution, counseling, and litigation....  |  Read More

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