Software Qualifies as "Article of Manufacture" for Disgorgement of Profits Under 35 U.S.C. § 289

Following a jury trial, the court denied defendant's renewed motion for judgment as a matter of law that plaintiff was not entitled to disgorgement damages under 35 U.S.C. § 289 for infringement of its design patents because plaintiff's software qualified as an article of manufacture. "⁠[Defendant] argues that [plaintiff's patents] claim a 'display screen' as their article of manufacture and, because [defendant] only presented evidence of profits from a software product and not a physical 'display screen,' it cannot recover disgorgement damages. . . . [Defendant] has already admitted that its products . . . infringe the [patents]. Thus, [defendant] has already admitted that there exists an 'article of manufacture' to which the patented designs . . . have been applied. Moreover . . . [s]oftware is 'a thing made by hand or machine,' and thus can be an 'article of manufacture.'"

Microsoft Corporation v. Corel Corporation et al, 5-15-cv-05836 (CAND May 11, 2018, Order) (Davila, USDJ)