How does section 289 work?
Section 289 provides a profit-based remedy for specified acts of design-patent infringement. Section 284 provides compensation for infringement, including at least a reasonable royalty. Section 289 preserves other remedies but prohibits recovering the same profit twice. The available recovery depends on the proven infringement and the remedy pursued.
Does the article have to be the whole product?
No. In Samsung Electronics Co. v. Apple Inc., the Supreme Court held that the relevant article of manufacture can be a component of a product, even if that component is not sold separately. The Court did not decide which article applied to the designs before it or adopt a complete test for identifying the article.
What records help evaluate the claim?
Start with the patent drawings, the accused product and its components, and the parties' proposed articles of manufacture. Keep sales, cost, and profit records connected to those proposed articles. A demand for all profit on a finished product needs analysis; neither a whole-product recovery nor a component-only recovery should be assumed.