Thursday, October 20, 2016

The Intersection of Copyrightable Works and Useful Articles at the Supreme Court

While most of the design patent world is focused on the Supreme Court's review of the Apple v. Samsung case, which we reported on last week, the Supreme Court is also set to hear oral arguments on Star Athletica, LLC v. Varsity Brands, Inc., a copyright case that could have implications for the scope of rights available to design owners.

Monday, October 17, 2016

Courtroom Sketches from Apple v. Samsung

As a follow-up to last week's post, we wanted to share the courtroom sketches from Apple v. Samsung that were graciously provided by Art Lien of  Art really captured the look of confusion on the Justices' faces...

Tuesday, October 11, 2016

Eight Telling Quotes from Apple v. Samsung Oral Arguments

So it finally comes to this. After five years of litigation, a dozen appeals to the Federal Circuit, and close to 1 Million tweets, the Apple v. Samsung case goes before the Supreme Court today for oral arguments. The sole issue being decided on appeal is whether an infringer's profits should be apportioned under 35 U.S.C. § 289. Or, as Samsung poses the question - "Where a design patent is applied to only a component of a product, should an award of infringer’s profits be limited to those profits attributable to the component?"

We're lucky to be reporting live from the Supreme Court today as the Supreme Court hears its first design patent case in over 100 years.  For this initial post, we'll be focusing on some of the more telling questions (and answers) from the justices during the hearing.   Continue reading after the jump for some of the more noteworthy quotes and our reaction.

Thursday, October 6, 2016

Premiere Gem Corp. v. Wing Yee Gems – Petitioner Turned Down in Diamond Jewelry Design IPR

In July, the Patent Trials and Appeals Board (PTAB) declined to institute Inter Partes Review of a design patent for an ornamental design of diamond jewelry.  Then, just last week, the Board denied a petition to rehear that earlier decision.  These decisions in Premier Gem Corp. et al. v. Wing Yee Gems & Jewelry Ltd. (IPR2016-00434) demonstrate how failing to introduce into evidence the details of the prior art can be fatal to a claim of anticipation or obviousness. They also offer a reminder that challenged designs and the prior art are to be compared on the basis of “overall visual appearance,” not mere “design concepts.”

Petitioners Premier Gem Corp. and Jay Gems Inc. (collectively, “Petitioner”) petitioned the Board to invalidate U.S. Design Patent No. D618,132 (the “’132 patent”).  The patent claims a jewelry design in which a large “full cut” central diamond is surrounded by nine smaller “single cut” diamonds.  (As the decision explains, “[f]ull-cut diamonds have more facets than single-cut diamonds, and typically produce a greater sparking effect.”)  The two figures of the patent are reproduced below:

U.S. Design Patent. D618,132

Tuesday, October 4, 2016

Apple v. Samsung - Preview of Upcoming Oral Arguments before the Supreme Court of the United States

After a brief hiatus, nothing helps to kickstart the Ordinary Observer blog like another episode in the Apple v. Samsung saga. This installment, of course, takes place at the Supreme Court with next week’s oral arguments on the all-important apportionment issue. For those who are casually following the case or just need a refresher, we summarize the party positions and key amicus briefs after the jump. We’ll also be reporting from the Court next week so stay tuned for a first-hand account of the arguments and predictions from the courthouse steps next Tuesday.

Thursday, July 21, 2016

Continuation-in-Part Design Patent Applications

Deciding when and under what circumstances a design patent application can claim priority to an earlier filed application can be a challenging task. In particular, we often get asked whether a design patent application may be filed as a continuation-in-part (CIP) of an earlier filed design patent application. While the quick answer is yes, the disadvantages associated with CIPs often outweigh the benefits.

Tuesday, May 3, 2016

Design Patent Destinations - Hague Seminar to be Presented by WIPO in Geneva

If you're looking to travel and learn about international design patent application regimes, then look no further than WIPO's Hague Seminar, which is taking place on June 23 in Geneva, Switzerland.   The stated objectives of the Seminar are to give practical guidance to users when designating the United States of America, Japan or the Republic  of Korea in an international design application and to receive feedback from those Offices as Designated Contracting Parties.  You can access WIPO's brochure for the seminar here.

WIPO's Hague Convention seminar comes at an important point in the United States' adoption of the Hague Convention.  While the Hague Convention filing process has been available in the United States since May of 2015, surprisingly few applicants have applied for an International Design Patent through the United States Patent Office, as we learned this year at Design Day.  While the Hague Convention certainly presents a more streamlined and cost-effective approach to international design registration, uncertainty regarding regional differences in design practice may be slowing the adoption of the system here in the United States.  Hopefully, the WIPO seminar in June can help provide a clearer path for U.S. filers.