This year marks the 10th anniversary of the first jury verdict in the landmark intellectual property dispute between Apple and Samsung, which resulted in the jury awarding more than $1 billion to Apple. More than $500 million of that award went to the discovery that Samsung infringed on three of Apple’s design patents for the iPhone® smartphone. Since then, interest in design patent protection has grown steadily in all respects. As interest grows, the number of design rights filings worldwide has increased, as has the evolution of legislation, both through court rulings and the legislation.
Once considered the intellectual property option left to you if you were unable to obtain utility patent protection, more and more companies are seeking design patent protection in addition, and in some cases, instead of utility patents. And why not? They can be less expensive and take less time to obtain and challenge than utility patents. They may also be easier for a court, and especially a jury, to understand. If an infringement is found, the patent holder may be awarded the entire profit made by the infringer on the sale of the infringing article – a remedy not available for infringement of a utility patent. It’s no surprise, then, that design patents are being used more frequently to protect designs for just about anything, from breakfast pastries to running shoes.
In this first issue of “The Year in Review,” we’ll highlight some of the important design patent court decisions from 2021 at the United States Court of Appeals for the Federal Circuit, the United States International Trade Commission United States, the United States District Courts and the US Patent and Trademark Office’s Patent Trial and Appeal Board. We will also provide an update on some of the recent legislative changes taking place around the world with respect to design protection and enforcement.
The information provided in this review is the result of a collaborative process. Thanks to the co-authors – Daniel Gajewski, Deirdre Wells and Ivy Estoesta, as well as Patrick Murray who provided important data and statistics for this review.