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` Petitioners : No. 15-777
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`The above-entitled matter came on for oral
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`KATHLEEN M. SULLIVAN, ESQ., New York, N.Y.; on behalf of
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` CHIEF JUSTICE ROBERTS: We'll hear argument
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` first this morning in Case No. 15-777, Samsung
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` the Patent Act entitles the holder of a single design
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` That result makes no sense. A single design
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` Section 289 does not require that result,
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` Apple and the government now agree that Section 289 does
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` that is applied to a component of a phone or a component
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` JUSTICE KENNEDY: The problem is, is how to
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` oh, give it to the juror. If I were the juror, I simply
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` My preference, if -- if I were just making
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` me neither side gives us an instruction to work with.
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` JUSTICE KENNEDY: One -- I mean, it's one
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` JUSTICE KENNEDY: If I'm the juror, I just
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` MS. SULLIVAN: That is correct, Your Honor.
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` front face of a phone. The rectangular, round-cornered
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` jury, I'm giving you guidance. There's an article of
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` Your Honor.
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` You should look at the patent, and, Justice
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` Kennedy, with respect -- you shouldn't just look at
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` the -- at the phones in the jury room. You ought to
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` look at the patent because, Justice Ginsburg, the patent
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` applied to in many, many cases, as in this case.
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` JUSTICE SOTOMAYOR: Ms. Sullivan, you seem
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` to be arguing, as when you opened, that as a matter of
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` law, you were right. And I don't see that as a matter
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` I believe that your basic argument, everyone
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` is in agreement, that the test is an article of
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` manufacture for purposes of sale.
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` do we announce the right test for that? Because the
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` might be what drives the sale. I don't know.
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` Certainly your expert didn't tell me how to
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` But I am like Justice Kennedy, which is, how
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` the record you would have enough to survive your
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`MS. SULLIVAN: So, Your Honor, let me back
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` up and restate the test, the burden, and the evidence.
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`The -- the test -- and I want to agree with
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` Your Honor. To be clear, we say that what the Federal
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`Circuit held was wrong as a matter of law. It is wrong
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` as a matter of law to hold that the entire product is
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`necessarily the article of manufacture from which you
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`measure total profit. That's wrong as a matter of law,
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`but we did not argue, Your Honor, that the test has to
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`hold we're right on the article as a matter of law.
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`It's an -- it's a -- it's a question of
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`either fact or, as you said in Markman, a mongrel
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` And why does it involve both? Because we
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` them that task in Markman, and we perform it daily. And
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` when they look at a patent for a claim construction,
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` we're asking for part of the test to be very similar.
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` The district court can look at the patent
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` and say, oh, this is Apple's front face patent. This
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` isn't one of Apple's 13 other patents on other parts of
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` the phone, or Apple's other patent on the design of the
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` entire case. This is the front face patent.
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` JUSTICE GINSBURG: Then how do -- how would
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` article of manufacture?
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` MS. SULLIVAN: Three ways, Your Honor.
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` You could look, if -- if a company buys the
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` component from an original equipment manufacturer, you
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` If, as sometimes happens within a company,
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` JUSTICE KENNEDY: So we find out the -- the
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` production cost if -- if a billion dollars were spent on
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` MS. SULLIVAN: That's absolutely right, Your
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` Honor. Apple didn't --
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` JUSTICE KENNEDY: So you'd have expert
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` MS. SULLIVAN: Yes, Your Honor, you would.
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` JUSTICE KENNEDY: Suppose -- suppose you had
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` a case where it's a stroke of genius, the design. In --
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` in two days, they come up with a design -- let's --
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` the briefs refer to. Suppose the Volkswagen Beetle
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` genius and it identified the car. Then it seems to me
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` MS. SULLIVAN: Well, Your Honor, here's what
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` we would do with the Beetle.
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` JUSTICE KENNEDY: I mean, that's what -- it
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` Apple could have but did not even attempt to prove the
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` total profit from the relevant article of manufactures
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` here, the front face, or the display screen. One could
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` demand evidence, Justice Kennedy, as you suggested.
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` Apple could have said well, people really like the front
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` indirect evidence through consumer survey. But, Your
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` Honor, as to the Beetle, we concede that the total
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` Let's take the Beetle, or let's take a cool,
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` JUSTICE ALITO: Is there any difference in
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` JUSTICE ALITO: What is the difference?
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` MS. SULLIVAN: The difference is we concede
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` Congress's purpose, Your Honor, is that what Congress
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` That's a little bit overinclusive, because
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` if you get total profit on the rugs that were at issue
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` JUSTICE SOTOMAYOR: Now, I look at this
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` this was their argument to the jury and it sold the
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`MS. SULLIVAN: Your Honor, let's go back to
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` JUSTICE SOTOMAYOR: I accept that,
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` Miss Sullivan. I'm asking you --
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` MS. SULLIVAN: Two answers, Your Honor. If
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` appearance of the phone and Apple does have a patent on
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` infringement can be found, and it's inappropriate to
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` So, Your Honor, if there had been a design
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` patent on the entire case, then, yes, absolutely, Apple
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` JUSTICE SOTOMAYOR: And you're answering
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` could not have found for Apple. Is that what --
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` MS. SULLIVAN: That is correct, Your Honor.
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` That is very much our position.
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` instruction, what was the legal error?
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` JUSTICE SOTOMAYOR: And so what, besides the
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`entire product was the article of manufacture to which
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`JUSTICE SOTOMAYOR: Well, you can't claim
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` perceive the Volkswagen to be a Volkswagen by its looks
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`your question as precisely as I can. Just because you
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`can show that most of the profit comes from the Beetle
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`exterior does not mean the car is the article of
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`manufacture. There's two steps here in our test.
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`damages, quantum of profits in this case, from that
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`Under your hypo, what -- if Apple got almost
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`indifferent to whether they could read their e-mail,
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`navigate, take photos, or any other functions. If you
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`could prove that it's a counterfactual that couldn't
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` article of manufacture could be a substantial portion of
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` the total product and the profit. That's not this case.
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` less than the whole phone?
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` MS. SULLIVAN: Six times, Your Honor. And
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` we were rebuffed every time. At the -- in the jury
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` instruction -- sorry. At the -- before the trial began,
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` we submitted a legal brief. It's Docket 1322. We said
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` very clearly article of manufacture is less than the
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` total phone and profit should be limited to the profit
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` from the article. We said again in the jury
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` instructions -- and here I would refer you respectfully
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` to joint Appendix 206, 207 and to the result of that on
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` petition Appendix 165A. What happened is we went to the
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` court and we said please listen to us about article of
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` manufacture, if you only get the total profit on the
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` article. The district court said, no, I already said no
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` apportionment back in the Daubert. Because I said no
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` apportionment, she shut us out of both theories. The
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` district court shut us out of article of manufacture as
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` the basis for total profit, and it shut us out of
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` causation or apportionment, which we don't press here.
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` So that's twice. Our legal brief, our
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` charge conference. And then again in our 50A and the
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`Alderson Reporting Company
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`Official - Subject to Final Review
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` key rulings on 50A at the close of evidence, we again
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` said article is separate from apportionment, and the
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` article here is less than the phone. At 197 we said
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` at -- sorry. At JA197 we again said article is less
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` than the phone. And in the 50B at the close of the
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`6
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` first trial, we again said article is less than the
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`7
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`phone.
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`Second trial happens on certain phones.
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`9