Appeals Court Strengthens Design Patents
from the just-what-we-didn't-need dept
Most patent infringement lawsuits you hear about involve utility patents, but every once in a while we hear about cases involving design patents, which are about the ornamental design of a product, rather than the process or method. However, most IP attorneys are always quick to point out how weak design patents really are (which is why you rarely see them pop up in litigation). However, that may have just changed. CAFC (the Court of Appeals for the Federal Circuit, who handles all patent related issues) has released a unanimous ruling that lowers the standard for infringement of a design patent from the "point of novelty" test that the court has used for almost 25 years (which required that any design patent actually have something novel) to a "ordinary observer" test -- where infringement will be deemed to occur if an "ordinary observer" would think the designs are the same. It's difficult to understand why the courts wouldn't keep a novelty requirement, considering the very purpose of the patent system, but we've been confused by CAFC rulings on a regular basis for years, now. Anyway, you can now expect more lawsuits over design patents and perhaps a few more questions about why we need design patents when trademarks already exist.
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Filed Under: design patents, novelty, ordinary observer, patents
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lawyer job security
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myphone and the iphone
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All The Cars
ARGH! the shoes! what about all the similarly designed shoes!! AND!! the cardboard boxes they come in?!!?!?
did the intelligence level within the U.S. just drop again when I was not looking? Or is there just a terminal disease that affects liars,*cough*, I mean politicians/judges?
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You are at least a little confused
Previously, design patent infringement was based upon two tests, the "ordinary observer" test and the "point of novelty" test. As the "ordinary observer" test was previously used, the "ordinary observer" could be like your "moron in a hurry" that you often talk about when discussing trademark infringement. Yes, the Court has now eliminated the "point of novelty" test, but it has also rolled up that test's requirements into the "ordinary observer" test by requiring that the hypothetical "ordinary observer" is fully knowledgeable of prior designs. This means that the "ordinary observer" can no longer be like your "moron in a hurry".
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Re: All The Cars
Wow, you must be sweating bullets under that tin-foil hat of yours.
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Functionality.
It is precisely the manufacturers of expensive upscale products who are likely to want to sue for infringement of whatever. However, many expensive upscale consumer goods tend to have a distinctive look about them. They are aggressively hyperfunctional, in much the same sense that military equipment is hyperfunctional. Such equipment is commonly designed to be taken apart and put back together with as few tools as possible. This is what the military calls "field-stripping," eg. getting the mud out of a rifle after one has inadvertently dropped it in the Mekong Delta. In this kind of design, there are no housings which conceal function. About the only reason for a housing is to provide a handgrip, or to guard moving parts, etc. In the latter case, glass or transparent plastic is often preferred, because the user can see what is going on inside. In this kind of design scheme, there is no room for merely ornamental features. If it's not useful, get rid of it. If you want to read a manifesto of this kind of design, look at Victor Papanek's classic _Design for the Real World_ (English translation, 1972, Swedish original edition, 1970), and also his _Nomadic Furniture_ (with James Hennessey, 1973). In the latter book, he presented a wide variety of furniture which could be rapidly broken down into planks for moving.
Needless ornamentation is characteristic of the inexpensive goods sold in chain stores.
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