Since our last article on the topic of design patent reexaminations (see “All or Nothing Design Patent Reexaminations: On the Rise,” June 8, 2010), design patents are more popular than ever.

Interest in design patents is increasing, in part, because they can be obtained relatively inexpensively and quickly. Dennis Crouch recently reported that from 2010-2012 the majority of design patents issue within 12-months of their filing date (see “Design Patents Are Still Relatively Quick” by Dennis Crouch, Patently-O, January 21, 2012). In addition, most design patents issue without amendment and with little or no file wrapper estoppel, potentially leading to a “cleaner” patent with potentially fewer issues to be raised in litigation that could negatively affect the scope of the patent. The number of design patent filings has increased approximately 20% since 2009 (Robert Olszewski, “State of the Technology Center,” USPTO Design Day 2013), and, with this increase it is reasonable to expect an increase in design patent enforcement.

Design patent infringement is based on a finding of “substantial similarity” between an accused design and the patented design in the eyes of an “ordinary observer”. This typically involves a more straightforward analysis than utility patent enforcement, particularly given the Federal Circuit’s warning of the dangers of reliance on a detailed verbal claim construction. See Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 680 (Fed Cir. 2008) (en banc). Moreover, the potential for disgorgement of the infringer’s profit can motivate a defendant to quickly settle on reasonable terms.

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