Wonder

Research Outline

Prepared for Josh S. | Delivered March 18, 2020

Design Patent Law Cases

Goals

To find out lesser known facts about design patents and identify examples of design patent law cases, each of which had a different gotcha, unexpected outcome, or exemplified a lesser known aspect of design patent law.

Early Findings

According to the global law firm White & Case, the Federal Circuit Court of Appeals has complicated the law governing the analysis of design infringement in the fashion industry while responding to the case, titled Columbia Sportswear N. Am. v. Seirus Innovative Access., Inc.
As a result of the court’s response, intellectual property litigants may be increasingly addressing design patents and design patent litigations may be getting lengthier, resulting in the filing of more design patent cases.
Litigants are also expected to see fewer cases resolved at summary judgment. 
In the case cited above, the jury awarded US$3 million in damages to Columbia for design patent infringement.
Notably, in the United States, it has long been the case that design patent infringement is not avoided by “labeling.” 
However, while responding to this case, the court decided that this precedent does not necessarily preclude design patent infringement for a product having a logo in a different position. Rather, this is seen as a “material issue of fact” that must be decided by a jury.
In another design patent case, titled ‘Young Vs Stone’, plaintiff Roger Young sued Anne Stone, Inc. for infringement of U.S. Design Patent No. D442,661, entitled “Golf Putting Practice Hole Simulator.” 
In general, while considering motions under Rule 12(c), courts accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. 
However, in this case, the court referenced the Twiqbal standard for dismissal, requiring that a plaintiff must plead sufficient facts to state a claim of relief that is plausible on its face.
In another notable case in the area of design patent law, the Federal Circuit reversed the grant of summary judgment of invalidity, vacated the claim construction, and affirmed the grant of summary judgment of non infringement.
As opined by the Federal Circuit, the district court’s grant of summary judgment as to invalidity was improper for two reasons: (1) the finding of functionality was unsupported by the evidence;and (2) the district court used “too high of a level of abstraction” in evaluating functionality.
As far as lesser known facts about design patent law cases are concerned, it has been seen that, statistically, design application appeals are rare.
In 2016, there were 48,707 design patent applications under examination, and only 245, or about 0.5%, were on appeal.  Contrarily, in 2016, of the 926,584 other types of applications under examination, 36,350, or about 3.9% were on appeal.
Research also suggests that for both design patents and utility patents, the electronics industry is of paramount importance.
Of the top ten assignees for utility patents granted in 2015, all ten are in the electronics industry.  For design patents, six are in the electronics industry.  
Majority of filing in U.S. utility and design patent examinations are from foreign applicants.
While utility patent applications filed by foreign applicants have increased from 45% in 1995 to almost 53% in 2015, design patent applications have more drastically increased from 30% to over 45%. 
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