The U.S. District Court for the Northern District of California recently determined that the owner of the iconic Dr. Martens trade dress—a famous design that has been used for more than three decades—was entitled to a permanent injunction against ITX USA for its use of footwear designs that are similar to the overall visual impression of the Dr. Martens trade dress. Continue Reading Dr. Martens Kicks Infringers to the Curb
Over the last 20 years, the total number of design patents issued per year in the United States has erupted. As illustrated in the graph below and further highlighted in this animated graph, in the 30 year period between the years 1971 and 2000 a total of nearly 219,000 design patents were issued by the U.S. Patent & Trademark Office (USPTO). In the 20 years since the year 2000, nearly 471,000 design patents have been issued, representing an annual issue count of more than three times that of the previous 30 year period. While the overall number of issued designs continues to increase each decade, one particular article of manufacture has seen the largest uptick in popularity among design patents issued over the last ten years: graphical user interfaces. Continue Reading Recent Trends in Article of Manufacture of Design Claims: A Modern Digital Popularity Contest
A recent decision of the United States Court of Appeals for the Federal Circuit has fundamentally altered the law on prior art anticipation for design patent applications. In this decision, captioned In re: SurgiSil, L.L.P. et al., No. 2020-1940 (Oct. 4, 2021), the Federal Circuit reversed a decision by the USPTO’s Patent Trial and Appeal Board (“Board”), which had previously affirmed an examiner’s anticipation rejection of a design patent claim for a lip implant based on a prior art reference depicting a similarly-shaped tool for artists. Continue Reading <i>In re SurgiSil</i> : Much More than a Cosmetic Change to Design Patent Law
In a recent decision, the Review Board of the United States Copyright Office (“Board”) reversed an examiner’s prior refusal to register a copyright in the artistic elements present in the bed shown above, paving the way for the applicant to obtain a copyright registration in this work. Continue Reading Design Protection: Don’t Sleep on Copyrights
On October 17, 2020, the Chinese Legislature passed the Fourth Amendment to the Chinese Patent Law, which will come into effect on June 1, 2021. As discussed in our previous post, the Fourth Amendment included several updates that help move Chinese Design Patent Law toward harmonization with the laws of most major markets. As June 1st quickly approaches, the article below highlights and expands upon some of the major updates coming to Chinese Design Patent Law. Continue Reading A Quick Dive Into the Upcoming Changes to Chinese Design Patent Law
This is the first article in a planned series that will analyze available design protection strategies for various categories of products.
Now that the era of work-from-anywhere and software-for-any-service has fully arrived, obtaining proper legal protection for software is paramount for many companies. However, due to an expansive interpretation by courts of the “abstract idea” exception to utility patent eligibility in recent years, protection for software-based systems and methods via utility patents has been made difficult. Accordingly, companies in this space should look to employ design-related rights to protect their software.
In this post, we will address how design patent, copyright, and trademark laws can be employed to provide protection for software-based designs. Continue Reading Protecting the Product™: Software
The United States Patent and Trademark Office (USPTO) published a notice in the Federal Register on December 21, 2020, requesting comments from the public related to the “article of manufacture” requirement for design patent eligibility appearing in Title 35, United States Code, Section 171. In particular, the USPTO asked whether the article of manufacture requirement should be revised to encompass “disembodied” designs made perceptible by new and emerging technologies. The comment period closed on February 04, 2021, with a total of 19 public comments received. Continue Reading Quick Take on Results of USPTO Request for Comments on Article of Manufacture Requirement for Designs
The Federal Circuit’s recent decision in Super-Sparkly Safety Stuff, LLC v. Skyline USA, Inc. reinforces best practices for design patent enforcement and procurement. An important takeaway from this decision is that when enforcing design patents in litigation, patent owners should develop record evidence from fact and expert witnesses to assist the court in the ordinary observer analysis to ensure that motions for summary judgment of non-infringement are decided with a sufficient record. Another important consideration for design patent holders is that when protecting designs, rights holders should consider robust filing strategies to protect iterative and varying aspects of important designs. These strategies may help companies avoid early judgment of non-infringement when they enforce their design patents by limiting the options of a defendant during the early stages of litigation. Continue Reading Pepper Spray Manufacturer’s Successful Self-Defense Reinforces Best Practices for Design Patents
The United Kingdom (UK) officially withdrew from the European Union (EU) in early 2020, which commenced a transitional period that expired on December 31, 2020. During this transitional period, the UK remained subject to the EU Design System and the design laws of the European Union Intellectual Property Office (EUIPO). However, as of January 1, 2021, the UK is no longer subject to the EUIPO design regime. Continue Reading Brexit’s Impact on European Design Registrations
The end-of-year shopping season started strong in 2020 due to the COVID-19 pandemic restrictions that kept many consumers in their homes and buying online. Brand owners and sellers should thus be mindful of the various options at their disposal to stop counterfeit goods from stealing legitimate e-sales and disappointing unsuspecting consumers who are unable to inspect goods when purchasing online. Continue Reading Tips and Tools for Sellers to Combat Online Counterfeits During the Holiday Shopping Season