Billion Dollar Baby – Apple and Design Patents

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It’s not too often that the media takes note of a patent dispute, but the Apple v. Samsung dispute has certainly gotten a lot of news attention.  Probably because almost 40% of Americans have a phone made by one or the other in their pockets.   After a tumultuous trial, on Friday, just two and a half days after closing arguments, the verdict came in from the California jury.  The jury found in favor of Apple and awarded the company over $1 billion in damages.

Many people think of their smartphones as just that – “smart,” technologically innovative gadgetry.  But what’s interesting about Apple v. Samsung is that 4 out of the 7 patents asserted by Apple covered design, not technological guts.   Figures from two of those design patents, D593087 and D618677  are shown below:D593087

Here are some reasons why you may want to consider adding design patents to your arsenal of intellectual property protection:

  • A design patent application is cheaper to file and maintain compared to its utility counterpart.   For a large entity like Apple (>500 employees), the US government fees to file the application and maintain the issued patent are $1,520 for a design patent and $11,700 for a utility patent.
  • About 80% of design patent applications result in an issued patent (often without a single rejection from the Patent Office) compared with about 40% of utility patent applications.  This also makes them cheaper than utility patents.
  • You get an issued patent quicker.  The average pendency for a design patent in the Patent Office is about 15 months versus 33.7 months for a utility patent.
  • To prove infringement, a company like Apple does not need to show a likelihood-of-confusion between its products and an alleged infringer’s product.  In fact, the patent owner does not need to practice his invention at all.  The patent right is a right to exclude others from doing something.  You need only show that the other party makes, uses, offers to sell, or sells a product that embodies your claimed inventive design.

Now recall that, in patent law, prior disclosures may present a bar to patentability – so it’s important to consider any patent filing strategy before disclosing your design to a third party or to the public.

Published In: Communications & Media Updates, Intellectual Property Updates, Science, Computers & Technology Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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