Posts Tagged: "Design applications"

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.

Strong Design Patents: The Power of Color

Ironically, color design patents are still published in black and white. The front page of a design patent will inform you, however, that the USPTO has a color image on file. By downloading the originally filed images on the USPTO’s Public PAIR data base, you can see what the color design patent actually covers. The originally filed color images can then be downloaded from the “supplemental content” tab of the PAIR record for each patent. The use of color design patents is growing fast, particularly for computer generated images. Similarities in color schemes can outweigh differences in shapes if an accused image is more similar in color pallet to a patented design than it is to other available designs. It’s a little more effort to file color images, but the increased strength of coverage can be well worth it.

Strong Design Patents: The Power of The Broken Line

Design patents can cover one or more of the shape, color, ornamentation or texture of an object. Design patents claiming a shape typically have line drawings showing various views of the shape. Solid lines in the drawings are the claimed features of the shape. Broken lines in the drawings show what the rest of the object might look like. To determine infringement, it’s only necessary to compare the solid lines. The broken lines don’t count. Ironically, this means that the fewer solid lines in a design patent, or conversely, the more broken lines in a design patent, the stronger the patent.

Patent Law Treaties Implementation Act of 2012 Modifies U.S. Design Patent Law

While much attention has been given to the recent, significant changes in U.S. patent law arising from the America Invents Act (“AIA”), lesser attention has been given to patent law changes brought about by further congressional action. Specifically, the Patent Law Treaties Implementation Act (“PLTIA”) enacted December 18, 2012, implements the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs. In making several important changes to U.S. design patent law, implementation of the Geneva Act importantly provides U.S. design patent applicants with increased flexibility and, like the AIA, further harmonizes U.S. patent laws with international norms.