Samuelson and Gergen, ‘The Disgorgement Remedy of Design Patent Law’

… This Article scrutinizes the legislative history of the total profit disgorgement remedy and offers guidance about how the disgorgement remedy in design patent cases should be analyzed and applied going forward. ‘Total profit’ disgorgement on end products may have been an appropriate remedy when patented designs covered the overall appearance of end products (eg, carpet or wallpaper designs), as we believe that they did when this special remedy was enacted. The explicit premise was that the infringer contributed (almost) nothing of value to the end product. The nature of the design entitlement has, however, changed over the past 40 years in two key respects …

Samuelson, Pamela and Gergen, Mark P, The Disgorgement Remedy of Design Patent Law (February 1, 2019). Forthcoming, 108 California Law Review (2020).

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