September 22, 2019 Feature

Columbia Sportswear v. Seirus: Pacesetter for Application of the Government’s “Article of Manufacture” Test in Design Patent Damages Cases

Perry J. Saidman and William P. Gvoth

©2019. Published in Landslide, Vol. 12, No. 1, September/October 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Every so often a legal case is situated to be a pacesetter for application of a new law or test. Columbia Sportswear v. Seirus1 is such a case and is currently pending in the U.S. Court of Appeals for the Federal Circuit. This is the first time that the Federal Circuit will review arguments under a four-factor test for determining the “article of manufacture” for the purpose of calculating design patent damages. The four-factor test was first suggested by the U.S. government via the Department of Justice and the United States Patent and Trademark Office (USPTO) in their amicus curiae brief filed in the U.S. Supreme Court in Samsung v. Apple.2

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