On October 11, the United States Supreme Court will hear oral arguments in Apple v. Samsung, the first case before the court in more than 125 years involving a claim for design patent infringement. In 2014, a California jury found, among other things, that Samsung infringed three design patents owned by Apple (and obtained by Sterne Kessler). After numerous appeals and cross-appeals below, the sole issue before the court is whether Apple should have been awarded Samsung's total profit from the sales of the products found to infringe the Apple patents.
Since 1887, the patent law has included a remedy only available for design patent infringement, which disgorges an infringer of the profit made from the sale of infringing products. The "total profit" rule, as it is sometimes referred to, can be a significant deterrent against would be copycats encouraging them to avoid emulating designs, which they know or suspect are protected by design patent.