U.S. patent laws allow for the disgorgement of the "total profits" earned by a design patent infringer deemed to have applied the "patented design" to "any article of manufacture." The disgorged profits historically were based on the sales of the entire infringing product, irrespective of the portion of the product that was actually covered by the design patent. The Supreme Court's 2016 decision in Samsung Elecs. Co. Ltd. v. Apple changed the automatic "entire product" rule by holding that, depending on the facts, the relevant "article of manufacture" could be either all or part of the infringing product.

This Jones Day White Paper explains the U.S. Justice Department's four-factor test for determining the "article of manufacture," and examines recent cases where district courts have applied the test.