Courtesy of Scotus Blog, here is a link to Samsung's reply brief in its design patent damages case against Apple. For links to the other briefs filed in the case see either the Scotus link in the preceding sentence or my previous post here. Samsung argues, among other things, that "Apple now admits" that the "article of manufacture" on which the total profit may be awarded may be a component of a product, not the entire product (p.1). Maybe this will give the Supreme Court some room to distinguish this case from the ones that apparently motivated Congress to enact what is now section 289 back in the nineteenth century--that is, to conclude that where the design is affixed to a detachable component, the profit should be based on that component even if the component isn't sold separately; but where (as with carpets, etc.) it isn't detachable, the relevant article of manufacture is the entire product.
It's a little cheeky, perhaps, that Samsung cites, albeit as authority only for the fairly innocuous proposition that "patent liability is a strict liability offense" (p.8), William F. Lee & A. Douglas Melamed, Breaking the Vicious Cycle of Patent Damages, 101 Cornell L. Rev. 385, 403-04 (2016). That's the same William F. Lee, of course, who is lead counsel for Apple.
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