The Power of Portfolio: Strong Design Patents III
Broadening coverage by refiling cases has been a very effective strategy for Apple. The child patent, D593,087, was one of the patents they successfully enforced against Samsung at trial. The grandchild patent, D618,678, is currently being asserted against Samsung at the US International Trade Commission. To add to the complexity of this case, an unknown third party has filed a request for reexamination at the USPTO for D618,678 asserting that this design would have been obvious in light of several similar Japanese phone designs that had not been considered before. If the patent survives the reexamination challenge, then the reexamination could actually strengthen Apple’s portfolio since this patent will have been more severely tested. On the other hand if this patent has difficulty getting allowed again, then the portfolio will be weakened in the eyes of the public while Apple pursues its appeals. An ultimate final determination of invalidity could take years given the numerous levels of appeal Apple has available.