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Monthly Minute | Design Patents
Patent Infringement: Successful Litigation Stays the "Course"
Kilpatrick partners Megan Bussey, Nicki Kennedy, and Michael Bertelson recently presented at the 20th annual KTIPS (Kilpatrick Townsend Intellectual Property Seminar) on the topic of “A New Era Dawns for Design Patent...more
Until now, case law has defined an “article of manufacture” solely for purposes of damages in design patent infringement actions. For the first time, a federal court has now interpreted the term “article of manufacture” in...more
In May, the Federal Circuit eliminated the long-standing test for design patent obviousness. In its place, the Federal Circuit emphasized a flexible approach to the design patent obviousness analysis, grounded in the Graham...more
As companies—and more recently, courts—have struggled to address the role of artificial intelligence (AI) in innovation, legislators are embroiled in a struggle of their own. Over the past two years, the Senate and House have...more
In LKQ Corp. v. GM Global Tech Operations LLC, the United States Court of Appeals for the Federal Circuit, sitting en banc, overruled the Rosen-Durling test for assessing obviousness of design patents.The now-outdated...more
In a dispute over the validity of design patents covering the fenders of GM’s 2018-2020 Chevrolet Equinox, the Federal Circuit overturned its own long-standing Rosen-Durling “rigid” standard for assessing obviousness of...more
Unlike utility patents, which are frequently invalidated on obviousness grounds, design patents historically faced a rigid test making obvious findings rare. The Federal Circuit has just issued an en banc decision that upends...more
An en banc panel of the Federal Circuit recently heard arguments in a case that could change how courts assess design patents for “obviousness.” LKQ Corporation and GM Global Technology Operations LLC are engaged in a...more
The technical problem actually solved by an invention should be determined based on distinguishing technical feature of the claims as compared with the most-related prior art and the technical effect can be known by a person...more
[co-author: Jamie Dohopolski] Last year, the continued global COVID-19 pandemic forced American courts to largely continue the procedures set in place in 2020. The U.S. Court of Appeals for the Federal Circuit was no...more
Kannuu Pty Ltd. v. Samsung Electronics Co., Appeal No. 2021-1638 (Fed. Cir. Oct. 7, 2021) - In our Case of the Week, the Federal Circuit addressed whether a forum selection clause in an NDA may prohibit a party from...more
The well covered Apple v. Samsung litigation highlighted the power of design patents and the potentially large profit disgorgement damages available for them. Like utility patents, design patents can be challenged through...more
USPTO Issues CBD Trademark Guidelines in Light of the 2018 Farm Bill: Key Takeaways - On May 2, 2019, the USPTO released its new guidelines on how it will examine federal trademark applications for CBD products in light of...more
Amazon.com has become ubiquitous in online retail, dominating the e-commerce marketplace worldwide. For sellers, Amazon acts as a crucial means of reaching customers around the globe. For consumers, it has become an...more
China’s Supreme People’s Court (SPC) recently circulated its Draft “Provisions on Several Issues concerning the Adjudication of Administrative Cases on Granting and Affirming Patent Rights (I)”...more
Patent protection in Taiwan has increased in importance as the economic relationship between the US, Europe, and Taiwan has grown. According to the United States Trade Representative, Taiwan is currently our 10th largest...more
While petitioners are successful over 60% of the time in getting the PTAB to institute trial on patents in the biotech, chemical, electrical/computer, mechanical, and business method arts, that is not the case for design...more
In the wake of the high-profile dispute in Apple v. Samsung, design patent procurement and enforcement activity has increased significantly. But practitioners may not appreciate that design patent validity can be attacked...more
Update to TC Heartland LLC v. Kraft Foods Group Brands LLC, Case No. 16-341 (May 22, 2017) - In an 8-0 opinion written by Justice Thomas (Justice Gorsuch did not participate), the Supreme Court rules that a defendant...more
As of January 2017, the institution rate for Patent Trial and Appeal Board trials involving design patents was 37 percent. That is significantly lower than every other technology area and makes design patents the only...more