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.
No comments :
Post a Comment