Design Patent Damages: A Critique of the Government’s Proposed 4-Factor Test for Determining the “Article of Manufacture”

The Supreme Court in Samsung Electronics Co. v. Apple, Inc. wrestled with the question of determining the meaning of “article of manufacture” in 35 U.S.C. § 289 when it comes to calculating the total profit of the infringer that is awarded to the patentee. In its Petition for Certiorari, Samsung raised the novel theory that the article of manufacture could be less than the entire product sold by the infringer. The Supreme Court agreed to hear the following issue, as framed in Samsung’s Petition: Where a design patent 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? Samsung argued that for a multi-component product, such as a smartphone, the article of manufacture needs to be defined in terms of only portions or components of the smartphone. Since Apple’s design patents were drawn to portions of the iPhone, rather than the entire iPhone, Samsung sought to limit its liability to its total profit on those portions. This would have greatly reduced the jury award of $399 million, which had been based on the total profit derived from Samsung’s sales of their entire smartphones to which the patented designs had been applied. The Supreme Court said that the only question before it was narrow: “[W]hether, in the case of a multicomponent product, the relevant ‘article of manufacture’ must always be the end product sold to the consumer or whether it can also be a component of that product.” Looking to the statutory text, the Supreme Court concluded that the term “article of manufacture,” as it is used in § 289, “encompasses both a product sold to a consumer and a component of that product.” The Court further indicated that the term “article of manufacture” is “broad enough to embrace both a product sold to a consumer and a component of that product, whether sold separately or not.” The Court declined, however, to “set out a test for identifying the relevant article of manufacture at the first step of the § 289 damages inquiry.” Thus, the narrow question left unanswered from Samsung is how to determine the relevant article of manufacture for a multi-component product, such as a kitchen oven (the example given by Justice Sotomayor). If the product is a single component product, such as a dinner plate (again, Justice Sotomayor’s example), there is no issue, because, as she put it, “the product [sold to a consumer] is the ‘article of manufacture’ to which the design has been applied.” The meaning of “total profit” was not at issue; as the Court stated: “‘[t]otal,’ of course, means all.” Thus, the Court left undisturbed the long-standing design patent rule against apportionment of the infringer’s total profit, as well as its sister rule prohibiting an inquiry into causation. As noted above, the Court left formulation of a test for determining the article of manufacture to the lower courts in future litigation

ALLOREACTIVE T LYMPHOCYTES CULTURED FROM LIVER TRANSPLANT BIOPSIES: ASSOCIATIONS OF HLA SPECIFICITY WITH CLINICOPATHOLOGICAL FINDINGS.

Lymphocyte cultures grown from liver allograft biopsies were shown to exhibit alloreactivity towards donor cells as measured by primed lymphocyte testing (PLT). The PLT specificity was determined in assays using HLA typed panel cells and/or by inhibition testing with HLA specific monoclonal antibodies. Certain cultures exhibited PLT specificity towards class I HLA antigens of the donor, whereas others were specific for class II HLA antigens or recognized mixtures of class I and II antigens. These PLT specificity patterns were compared with clinical, histological and laboratory findings on the liver transplant patients at the time of the biopsy. Biopsies yielding class I specific PLT cells were taken generally during the earlier posttransplant period, whereas class II specific cells were grown from later biopsies. There was no significant correlation of the PLT specificity towards class I vs II antigens with the levels of total or direct bilirubin, serum glutamate oxaloacetic transaminase (SGOT), and serum glutamate pyruvate transaminase (SGPT), although a trend towards higher values was noted for biopsies presenting with a class II specific infiltrate. However, the levels of gamma glutamyl transpeptidase (GGTP) and alkaline phosphatase (AP) were significantly increased when biopsies yielded class II specific rather than class I specific PLT cells. Biopsy histology showed more damage to bile duct epithelium in association with class II PLT specificity whereas intense but often reversible infiltrates were found in biopsies yielding class I specific cells. The elevated GGTP and AP levels are probably related to the interaction of class II specific T cells with bile duct epithelium, which has been shown to express induced class II HLA antigens on their cell surface

Maximum weight cycle packing in directed graphs, with application to kidney exchange programs

Centralized matching programs have been established in several countries to organize kidney exchanges between incompatible patient-donor pairs. At the heart of these programs are algorithms to solve kidney exchange problems, which can be modelled as cycle packing problems in a directed graph, involving cycles of length 2, 3, or even longer. Usually, the goal is to maximize the number of transplants, but sometimes the total benefit is maximized by considering the differences between suitable kidneys. These problems correspond to computing cycle packings of maximum size or maximum weight in directed graphs. Here we prove the APX-completeness of the problem of finding a maximum size exchange involving only 2-cycles and 3-cycles. We also present an approximation algorithm and an exact algorithm for the problem of finding a maximum weight exchange involving cycles of bounded length. The exact algorithm has been used to provide optimal solutions to real kidney exchange problems arising from the National Matching Scheme for Paired Donation run by NHS Blood and Transplant, and we describe practical experience based on this collaboration

Isolation and primary cultures of human intrahepatic bile ductular epithelium

A technique for the isolation of human intrahepatic bile ductular epithelium, and the establishment of primary cultures using a serum- and growth-factor-supplemented medium combined with a connective tissue substrata is described. Initial cell isolates and monolayer cultures display phenotypic characteristics of biliary epithelial cells (low molecular weight prekeratin positive; albumin, alphafetoprotein, and Factor VIII-related antigen negative). Ultrastructural features of the cultured cells show cell polarization with surface microvilli, numerous interepithelial junctional complexes and cytoplasmic intermediate prekeratin filaments. © 1988 Tissue Culture Association, Inc