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Posts Tagged: "design patents"

In re Surgisil: Boon, Burden, or Mixed Bag for Patent Applicants and Patentees?

Last week, the Federal Circuit Court reversed the Patent Trial and Appeal Board decision in In re Surgisil, L.L.P., overturning the Board’s ruling that a design for a rolled-paper art tool for blending anticipated Surgisil’s (Applicant) claimed lip implant. In re Surgisil, L.L.P., No. 2020-1940, 2021 WL 4515275 (Fed. Cir. Oct. 4, 2021). Although the “stump” art tool cited as prior art in Surgisil resembled Applicant’s lip implant (see below), the Federal Circuit found that Applicant’s “claim is limited to lip implants and does not cover other articles of manufacture.” From this finding, the Surgisil court appears to extrapolate a symmetry by which a design for an artist’s stump is both ineligible for citation against Applicant’s lip implant in patent prosecution and also not covered in a putative enforcement of Applicant’s design.

CAFC Reverses PTAB Patentability Finding in Campbell Soup Dispenser Case

The U.S. Court of Appeals for the Federal Circuit yesterday reversed the Patent Trial and Appeal Board’s (PTAB’s) finding that Campbell Soup Company, Campbell Sales Company, and Trinity Manufacturing, LLC did not demonstrate the claimed designs of Gamon, Inc.’s design patents would have been obvious over the prior art. The CAFC held that the designs were obvious because Gamon did not prove a nexus between commercial success and the claims, and because the evidence of Trinity’s copying did not overcome the strong evidence of obviousness provided by the prior art.

Design Patents 101: Understanding Utility Patents’ Lesser-Known Cousin

Design patents provide powerful protections both on their own and as a complement to their more well-known cousin, utility patents. The highly publicized Apple v. Samsung lawsuits of the previous decade featured both design and utility patents, and revitalized public awareness of design patents in general. In fact, it was infringement of the design patents that resulted in the large damages awards in those litigations, with three design patents resulting in an award of $533.3 million and two utility patents only $5.3 million. Beyond the likelihood of greater money damages, as compared to their utility patent counterparts design patents are also less expensive to obtain and hold, offer simpler determinations of infringement and validity, and are less susceptible to being invalidated (whether, e.g., for non-patent eligible subject matter or via a post-grant procedure). As such, design patents are more likely to survive, potentially resulting in substantial damages for the patent holder.

Understanding What a Design Patent is Not

You have probably heard of a company called Apple. They sell computers, watches, tablets and all kinds of accessories. You have probably also heard that Apple was engaged in a patent war with Samsung Electronics, which was fought all over the world and finally resolved after many years of litigation. What you might not be familiar with is the fact that, in the United States, it was not Apple’s utility patent portfolio that was found infringed by Samsung. Apple had to rely on design patents to prevail over Samsung. If design patents are powerful enough for Apple to use to prevail over Samsung, then it makes sense that anyone who has a unique visual presentation to their products should consider whether adding design protection to their portfolio is a wise decision— which it probably is.

Design Patents: Under Utilized and Overlooked

Once upon a time, one of the ways you could spot scams from legitimate operators in the patent industry was to look at who was directing clients to get design patents. Design patents have always been easy to obtain, indeed, far easier to obtain than a utility patent. Of course, as with many things in life and with virtually everything in the realm of intellectual property law, the easier something is to obtain the less valuable it is to own. This general rule about easier and cheaper rights has been turned upside down in recent years with respect to design patents, at least to some extent. Unfortunately, not nearly enough individuals and companies are seeking design patent protection. In 2019, for example, there were 46,847 design patent applications filed, which represents 7.01% of the total number of patent applications filed in 2019. So, although design patents are being filed in larger numbers year after year (See Figure 1), as a percentage of the overall number of patent applications filed, they are largely staying within the 50-year historical norm (See Figure 2). Data taken from U.S. Patent Activity.

Why and When Design Patents are Useful

Simply said, the rights provided by one design patent will be extremely unsatisfactory. However, design patents must be considered because a design patent can in many instances be awarded in as few as six to nine months. If obtaining some protection is important for an overall marketing strategy, getting at least some protection quickly may be advantageous compared to waiting the two to three years it will likely take to obtain a utility patent. Design patents can also be an extremely useful tool for a variety of reasons.

How to Avoid USPTO Rejections in Patent Drawings

Accurate and clear patent drawings strengthen and enhance patent applications, helping patent examiners who are already overburdened with applications to understand inventions faster. In this article, we will be covering the essential points on the importance of patent drawings and how we can make the drawings feasible for filing at the USPTO. We will also cover some important guidelines to help you to avoid unwanted office actions.

IPWatchdog Annual Meeting Now VIRTUAL CON2020

IPWatchdog® CON2020 has gone VIRTUAL!   The IPWatchdog® Virtual CON2020 will endeavor to address the issues facing innovators, creators and brand owners as they find it increasingly difficult to monetize their proprietary creations in an economy where many large enterprises no longer want to pay for what they choose to implement and/or sell, and there is scant legal recourse to…

IPWatchdog Annual Meeting Now VIRTUAL CON2020

IPWatchdog® CON2020 has gone VIRTUAL!   The IPWatchdog® Virtual CON2020 will endeavor to address the issues facing innovators, creators and brand owners as they find it increasingly difficult to monetize their proprietary creations in an economy where many large enterprises no longer want to pay for what they choose to implement and/or sell, and there is scant legal recourse to…

Could COVID-19 Counterfeit Concerns Get Congress to Move Towards Passage of the Counterfeit Goods Seizure Act?

In late July, water bottle maker Hydro Flask and parent company Helen of Troy Limited filed a complaint with the U.S. International Trade Commission (ITC) asking the agency to institute a Section 337 investigation against a series of 25 respondents, most of which are located in China, over their alleged infringement of Hydro Flask’s trademarks and design patents. The legal action highlights the difficulties being faced by many American brand owners during the COVID-19 pandemic and how Congressional action could help to ensure that these small businesses are able to effectively enforce their IP to prevent counterfeit imports.

IPWatchdog Annual Meeting Now VIRTUAL CON2020

IPWatchdog® CON2020 has gone VIRTUAL!   The IPWatchdog® Virtual CON2020 will endeavor to address the issues facing innovators, creators and brand owners as they find it increasingly difficult to monetize their proprietary creations in an economy where many large enterprises no longer want to pay for what they choose to implement and/or sell, and there is scant legal recourse to…

IPWatchdog Annual Meeting Now VIRTUAL CON2020

IPWatchdog® CON2020 has gone VIRTUAL!   The IPWatchdog® Virtual CON2020 will endeavor to address the issues facing innovators, creators and brand owners as they find it increasingly difficult to monetize their proprietary creations in an economy where many large enterprises no longer want to pay for what they choose to implement and/or sell, and there is scant legal recourse to…

IPWatchdog Annual Meeting Now VIRTUAL CON2020

IPWatchdog® CON2020 has gone VIRTUAL!   The IPWatchdog® Virtual CON2020 will endeavor to address the issues facing innovators, creators and brand owners as they find it increasingly difficult to monetize their proprietary creations in an economy where many large enterprises no longer want to pay for what they choose to implement and/or sell, and there is scant legal recourse to…

IPWatchdog Annual Meeting Now VIRTUAL CON2020

IPWatchdog® CON2020 has gone VIRTUAL!   The IPWatchdog® Virtual CON2020 will endeavor to address the issues facing innovators, creators and brand owners as they find it increasingly difficult to monetize their proprietary creations in an economy where many large enterprises no longer want to pay for what they choose to implement and/or sell, and there is scant legal recourse to…

Federal Circuit Finds District Court Correctly Applied Ordinary Observer Test

Last week, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the U.S. District Court for the Middle District of Florida in Lanard Toys Limited v. Dolgencorp LLC, Ja-Ru, Inc., Toys “R” Us-Delaware, Inc. The district court granted summary judgment in favor of Dolgencorp LLC, Ja-Ru, Inc., Toys “R” Us-Delaware, Inc. (the Appellees) on Lanard’s claims of design patent infringement, copyright infringement, trade dress infringement, and statutory and common law unfair competition. The CAFC, in an opinion authored by Judge Lourie, affirmed on all four claims.