Samsung Electronics Co., Ltd. v. Apple, Inc., U.S., No. 15-777, amicus brief filed 8/4/2016 August 4, 2016

The plain language and legislative history of 35 U.S.C. 289 demonstrates that Congress has provided design patent owners with an infringement remedy of the infringer's profits that is based on the total, unapportioned revenue from sales of the entire article of manufacture, AIPLA argued August 4, 2016, in a Supreme Court amicus brief.

Congress over the years has made different decisions on recovering an infringer’s profits with respect to utility patents (repealed in 1946), trademarks (granted in 1946, placing the apportionment burden on the infringer), and copyrights (granted in 1976, placing the apportionment burden on the infringer), the brief noted. However, Congress has not moved away from its grant to design patent owners of the right to recover an infringer’s total, unapportioned profits, according to the brief.