Coincidentally to the Apple v. Samsung oral argument, Mr. Saidman spoke about the perplexing issue of design patent functionality at an all-day conference at the George Washington University Law School on November 21, 2014 in Washington, DC. He made a radical proposition, namely, that the doctrine of functionality was dead (or at least should die) both with respect to design patent validity and infringement.
Here is his presentation; comments are welcome.