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

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

Combined liver-kidney transplantation and the effect of preformed lymphocytotoxic antibodies

Thirty-eight sequentially placed liver and kidney allografts were evaluated with respect to patient and graft survival, and the influence of preformed lymphocytotoxic antibodies was analysed. The results suggest that the survival rate of combined liver and kidney transplantation is similar to the survival rate of liver transplantation alone. Sequentially placed kidney allografts may be protected from hyperacute rejection in the presence of donor specific lymphocytotoxic antibodies, but not in all instances. Both patient and kidney allograft survival was lower in positive crossmatch patients (33% and 17% respectively) than in negative crossmatch patients (78% and 75%). High levels of panel reactive antibodies (>10%) also appeared to have a deleterious effect on survival, although the majority of the patients who failed also had a positive crossmatch. Although preformed lymphocytotoxic antibodies are not an absolute contraindication to combined liver-kidney transplantation, they do appear to have a deleterious effect on long-term graft survival. However, more correlation with clinical parameters is needed. © 1994

Can modern infrared analyzers replace gas chromatography to measure anesthetic vapor concentrations?

<p>Abstract</p> <p>Background</p> <p>Gas chromatography (GC) has often been considered the most accurate method to measure the concentration of inhaled anesthetic vapors. However, infrared (IR) gas analysis has become the clinically preferred monitoring technique because it provides continuous data, is less expensive and more practical, and is readily available. We examined the accuracy of a modern IR analyzer (M-CAiOV compact gas IR analyzer (General Electric, Helsinki, Finland) by comparing its performance with GC.</p> <p>Methods</p> <p>To examine linearity, we analyzed 3 different concentrations of 3 different agents in O₂: 0.3, 0.7, and 1.2% isoflurane; 0.5, 1, and 2% sevoflurane; and 1, 3, and 6% desflurane. To examine the effect of carrier gas composition, we prepared mixtures of 1% isoflurane, 1 or 2% sevoflurane, or 6% desflurane in 100% O₂(= O₂group); 30%O₂+ 70%N₂O (= N₂O group), 28%O₂+ 66%N₂O + 5%CO₂(= CO₂group), or air. To examine consistency between analyzers, four different M-CAiOV analyzers were tested.</p> <p>Results</p> <p>The IR analyzer response in O₂is linear over the concentration range studied: IR isoflurane % = -0.0256 + (1.006 * GC %), R = 0.998; IR sevoflurane % = -0.008 + (0.946 * GC %), R = 0.993; and IR desflurane % = 0.256 + (0.919 * GC %), R = 0.998. The deviation from GC calculated as (100*(IR-GC)/GC), in %) ranged from -11 to 11% for the medium and higher concentrations, and from -20 to +20% for the lowest concentrations. No carrier gas effect could be detected. Individual modules differed in their accuracy (p = 0.004), with differences between analyzers mounting up to 12% of the medium and highest concentrations and up to 25% of the lowest agent concentrations.</p> <p>Conclusion</p> <p>M-CAiOV compact gas IR analyzers are well compensated for carrier gas cross-sensitivity and are linear over the range of concentrations studied. IR and GC cannot be used interchangeably, because the deviations between GC and IR mount up to ± 20%, and because individual analyzers differ unpredictably in their performance.</p