Wednesday, November 6, 2013

Design Patent Statistics, July 30-Oct. 25, 2013

Because we have been away for a while, this week we thought it might be a good idea to look through the backlog of new design patent case filings we missed over the past few months and see what the cases told us in aggregate, even if we cannot break them down on an individual basis.  The following information is drawn from a sampling of sixty four cases filed in the United States District Courts between July 30 and October 25, 2013, in which the plaintiff or counterclaim defendant alleged infringement of at least one United States Design Patent.  Here is what we observed.


Starting off, we note the breakdown between cases involving a combination of design and utility patent rights, and those asserting design patents alone.  The majority of cases relating to design patent cases do not assert corresponding utility patent rights, but that is not to say that they are necessarily focused on design patent rights alone; many design patent cases involve co-pending allegations of trademark, trade dress and copyright infringement as well as unfair competition and similar claims.  When the number of patents asserted in a litigation is considered, design patent litigation appears to be commensurate in scope with design and utility patent litigation; a majority of cases focus on the infringement of a single patent, or on a single design and utility patent in the case where both types of patents are asserted.

When we dig deeper into the data set, more interesting patterns emerge.  Looking at the districts in which new cases have been filed since the end of July, the Central District of California is clearly the favorite jurisdiction of recent design patent plaintiffs.  This is only somewhat surprising.  The Central District of California has traditionally been viewed as plaintiff friendly in overall patent litigation, and in recent years it has always ranked among the most active district courts for new patent case filings.  That does not entirely explain the degree to which the central district dominates the other jurisdictions in terms of new design patent cases being filed, however, and that may warrant additional analysis in a future post.

Looking at the data behind this graph, one other forum raises eyebrows.  At least three jurisdictions aside from the Central District of California reported four or more design patent cases filed between the end of July and October of this year.  In the Southern District of Georgia, all five cases were filed by a single lead plaintiff, A&J Manufacturing, LLC, regarding a collection of design and utility patents related to outdoor grilling. Nos. 13-cv-00113, 13-cv-00114, 13-cv-00115, 13-cv-00120 and 13-cv-00121 (filed Aug. 21, 2013).  In the District of Massachusetts, all four cases were filed by Bern Unlimited, Inc., accusing various defendants of infringing two patents for the design of a visor on helmets.  No. 13-cv-11899 (filed Aug. 8, 2013); no. 13-cv-11918 (filed Aug. 9, 2013); no. 13-cv-11927 (filed Aug. 12, 2013); and no. 13-cv-11951 (filed Aug. 14, 2013). 

By contrast, the four cases pending in the District of Utah were filed by four distinct plaintiffs against unrelated defendants alleging infringement of unrelated design patents.  Part of this spike can be easily explained: two of the cases filed in this district were instituted by plaintiffs located in the State of Utah.  ICON Health & Fitness v. Pednar Prods., no. 13-cv-00152 (D. Utah Oct 24, 2013); Turboy Style Prods., LLC v. Luigia Lashes, LLC, no. 13-cv-00852 (D. Utah Sept. 17, 2013).  In the remaining two cases, the plaintiffs are not residents of the district, and jurisdiction is predicated on the defendants "doing business" within the state under the Utah long-arm statute.  Choi v. North Bear Beauty Sys., no. 13-cv-00835 (D. Utah Sept. 1, 2013); WorldConnect AG v. E&B Giftware, LLC, no. 13-cv-00896 (D. Utah Oct. 2, 2013).  It is unclear what makes the District of Utah the forum of choice for these plaintiffs.  Given the small sample size, we cannot presently say that this anything more than coincidence.  The possibility that Utah may become a hub of design patent litigation is intriguing, however, and we will keep an eye on filings in this district to learn more.


Transitioning from data about the litigation to data about the patents in litigation, we next look at age of the design patents, from the date of issue, on the date the complaint asserting them was filed.  Here again, the data seem to reinforce what one might consider intuitive.  The majority of design patent infringement cases filed recently were filed early in the life of the design patent, with a heavy concentration beginning a few months after issue.


Moving to more substantive questions, we next take a look at the primary classification of the patents asserted in new cases filed during the time period we examined.  In the abstract, this appears to tell us that the most litigated designs tend to be in classes for Furnishings (D06), Equipment for Preparing or Serving Food or Drink Not Elsewhere Specified (D07), Apparel and Haberdashery (D02), Environmental Heating and Cooling; Fluid Handling and Sanitary Equipment (D23), Equipment for Safety, Protection, and Rescue (D29) and Recording, Communication, or Information Retrieval Equipment (D14).

This could be misleading, however, as we previously noted that a number of plaintiffs have asserted multiple patents in several cases.  A single plaintiff who asserts perhaps five patents related to footwear could, in this small sample, artificially inflate the apparent interest in litigating footwear patents by a substantial amount.  To account for this, we decided to limit our examination to one patent asserted per class per defendant

When adjusted in the aforementioned manner, a different pattern emerges.  Design patents classified as Equipment for Safety, Protection, and Rescue (D29) appear far less popular with plaintiffs, while those classified as Medical and Laboratory Equipment (D24) appear comparatively more so.

This too does not tell the entire story, because patents in all classifications are not granted in equal numbers.  If we were able to compare the number of patents granted in a class with the number of patents in that class asserted in litigation, it may be possible to draw some conclusion as to the value or interest in these areas of design.


Fortunately, the United States Patent and Trademark Office maintains a number of reports on patents granted by their examiners.  Based on the USPTO's numbers, the total number of design patents granted, by class, can be represented by the above labeled chart.  If we normalize both charts so that the number of patents granted or asserted is viewed as a proportion of the whole, we can compare the two numbers directly, and see which classes have been asserted in the last few months in greater numbers than they are traditionally granted, and vice versa.


The chart above shows us an interesting comparison between the designs that individuals and corporations choose to patent, and those they choose to assert in litigation.  Over the last few months, design patents for Apparel and Haberdashery (D02), Medical and Laboratory Equipment (D24) and Photography and Optical Equipment (D16) have been asserted in substantially greater proportion than they have traditionally been granted.  This may indicate that these are "hot" areas for design patent litigation at this time, but we would have to examine more cases on a longer timeline to do more than speculate.  This information is still worth consideration, especially by potential clothing designers, medical device manufacturers or photography companies who may not have adequately protected their own rights in their designs.

Having looked at the patent litigation landscape of the last few months, come back for more updates on current and newly filed cases, and in-depth analysis of design patent developments, every week here at The Ordinary Observer.

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