35 U.S.C. § 289
Additional remedy for infringement of design patent
Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties.
Nothing in this section shall prevent, lessen, or impeach any other remedy which an owner of an infringed patent has under the provisions of this title, but he shall not twice recover the profit made from the infringement.
Notes of Decisions
Cited in 112
cases (59 in the last 5 years), 1956–2026 · leading case: Braun Inc. & Braun Aktiengesellschaft, Plaintiffs/cross-Appellants v. Dynamics Corp. of Am., 975 F.2d 815 (Fed. Cir. 1992).
Braun Inc. & Braun Aktiengesellschaft, Plaintiffs/cross-Appellants v. Dynamics Corp. of Am., 975 F.2d 815 (Fed. Cir. 1992). “14 Braun elected to recover Waring’s total profits under 35 U.S.C. § 289 , 15 not 35 U.S.C. § 284 , which provides that a patentee may recover “damages adequate to compensate for the infringement” which “the court may increase .”
Samsung Elec. Co. v. Apple Inc., 137 S. Ct. 429 (2016). “" 35 U.S.C. § 289 . In the case of a design for a single-component product, such as a dinner plate, the product is the "article of manufacture" to which the design has been applied.”
Bergstrom v. Sears, Roebuck & Co., 496 F. Supp. 476 (D. Minnesota 1980). “Further, Bergstrom also seeks an injunction against the future production or sale of the Firebird I by the defendants.”
Catalina Lighting, Inc., & Home Depot Usa, Inc., Third Party v. Lamps Plus, Inc. & Pac. Coast Lighting, Defendants/third Party, 295 F.3d 1277 (3rd Cir. 2002). “For the `904 patent, Lamps Plus received Catalina's profits of $275,194 and Home Depot's profits of $492,748 under 35 U.S.C. § 289 . Catalina argues that the jury's award of a $10 per lamp royalty for infringement of the `141 patent was not supported by substantial evidence,…”
Schnadig Corp. v. Gaines Mfg. Co., Inc., 620 F.2d 1166 (6th Cir. 1980). “In this appeal we are asked to decide whether the infringer of a design patent can use the income taxes and fixed expenses attributable to his infringing activities to reduce the amount of his “total profit” from the infringement which a design patentee can recover under 35…”
L.A. Gear, Inc., Plaintiff/cross-Appellant v. Thom McAn Shoe Co. & Melville Corp. & Pagoda Trading Co., Inc., 988 F.2d 1117 (Fed. Cir. 1993). “Infringement In 35 U.S.C. § 289 infringement is defined as unauthorized manufacture or sale of “the patented design, or any color-able imitation thereof”.”
Nike, Inc. v. Wal-Mart Stores, Inc. & Hawe Yue, Inc., 138 F.3d 1437 (Fed. Cir. 1998). “The court held the patent valid and infringed, and awarded the infringers’ profits to the patentee in accordance with 35 U.S.C. § 289 . The appellants do not appeal the rulings of validity and infringement, but raise issues of patent marking, notice, the measure of compensation,…”
Robert Bosch, Llc v. Pylon Mfg. Corp., 719 F.3d 1305 (Fed. Cir. 2013). “Justice Swayne, writing for the Court, went on to describe an accounting in detail, stating: The profits made in violation of the rights of the complainants’ in this class of cases, within the meaning of the law, are to be computed and ascer- tained by finding the difference…”
Nordock, Inc. v. Sys. Inc., 803 F.3d 1344 (Fed. Cir. 2015). “Because we find that the district court erred in its assessment of design patent damages under 35 U.S.C. § 289 , we vacate the damages award and remand for a new trial on damages.”
Aero Prods. Int'l, Inc. v. Intex Rec. Corp., 466 F.3d 1000 (Fed. Cir. 2006). “35 U.S.C. § 289 . 05-1283 26 breach-of-contract claim would constitute a double recovery.”
Yurman Studio, Inc. v. Castaneda, 591 F. Supp. 2d 471 (S.D.N.Y. 2008). “See 35 U.S.C. § 289 . 102 . See 15 U.S.C. § 1125 (a).”
Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc., 501 F.3d 1314 (Fed. Cir. 2007). “The elements of design patent infringement are set forth at 35 U.S.C. § 289 : Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of…”
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