Since the inter partes review (IPR) process became available on September 16, 2012, over 1,100 IPR petitions have been filed. But only eight petitions have challenged design patents, representing less than 0.8% of all petitions filed. This trend might change, however, given the recent final written decision in Munchkin Inc. et al. v. Luv N' Care Ltd. (IPR2013-00072), which invalidated Luv N' Care Ltd.'s design patent for a baby drinking cup. The Luv N' Care design patent is the first to fall victim to an IPR challenge.
Munchkin, Inc. and Toys "R" Us, Inc. (collectively, "Petitioner") challenged Luv N' Care's U.S. Design Patent No. D617,465 as being obvious over two of Luv N' Care's own utility patent documents. The asserted references were U.S. Patent Application Publication No. 2007/0221604 and U.S. Patent No. 6,994,225. The challenged patent and the asserted references all share the same inventor. Below is a side-by-side comparison between the challenged design and the invalidating design.
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