This blog covered this case previously in this post.
In the underlying suit, Samsung advanced an "article of manufacture" theory, which states that a patented design is not necessarily applied to the entire product that is sold, and thus profits from the entire product should not always be awarded. (This is distinct from "apportionment" theory, which states that the patentee must show what portion of the infringer's profit was due to the patented design and what portion was due to the article itself.) The Supreme Court approved the "article of manufacture" theory in Samsung Elecs. Co. v. Apple Inc., 136 S.Ct. 1453 (2016). Accordingly, Samsung requested a new trial as to the "article of manufacture" issue. Apple opposed, arguing Samsung did not preserve the issue for a retrial.
The court granted new trial, finding that the jury instruction in the underlying action prejudiced Samsung as to the "article of manufacture" theory. The court found that Samsung properly objected to the jury instruction, which was inconsistent with the Supreme Court's decision. The court then invited further briefing as to a number of legal questions, including the test for identifying the article of manufacture, whether such an identification is a question of law or fact, burden of proof, etc.
We are breaking new grounds with each step of this litigation. Although the Supreme Court endorsed the "article of manufacture" theory, it punted to the lower courts the task of formulating the legal task for applying the theory. Bears watching for all IP practitioners.