With the new year upon us, now may be a good time to assess this past year. In describing 2016, “unpredictable” is the first word that comes to mind, from our presidential election to some of the evolutions in patent law. It just so happens that the recent election will create some more “unpredictable” changes in 2017.
But first, let me assess this past year, which was a busy time for patent remedies. The U.S. Supreme Court decided two cases, one on willfulness and the other on design patent damages. In Apple v. Samsung, the court’s ruling suggests that patent holders may no longer receive all of the profits from the sale of a product infringing a design patent, but they may still recover the profits attributable to the infringing feature. The court’s ruling will bring significant challenges in the calculation of damages for design patents and the need for additional factual and expert input.
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