The last two weeks in design patent law brought us a Federal Circuit decision on pleading standards and several noteworthy decisions in the Apple v. Samsung cases, but there were several other smaller developments that caught our attention. So, without further ado, we present this week's design patent links:
Several commentators offered their take on the Federal Circuit's decision in Hall v. Bed, Bath & Beyond, Inc., including Patently-O, and Dow Lohnes. You can read our original commentary here.
In a new twist in the long and hard fought battle between Samsung and Apple, the ITC has recently issued a notice of review of the Final Initial Determination issued in October of 2012 by Administrative Law Judge Pender. In that decision, ALJ Pender held that deceptive similarity is not "a prerequisite to a finding of infringement, but merely a consequence, or result, of the designs being substantially the same. . . . [T]he sole test for design patent infringement is whether the claimed design is 'substantially the same' as the accused design in the eye of the ordinary observer, giving such attention as a purchaser usually gives. . . . I have kept it in mind that a purchaser of the kind of devices at issue in this investigation will pay significant attention to what they are buying." The notice of review can be found here. ALJ Pender's order from last October can be found here. As correctly reported by Lexology, the only new development in this story is the ITC's decision to review his findings.
In other Apple-related news, last week some commentators incorrectly reported that Apple was awarded a design patent for the appearance of its stores. However, it appears that Apple merely registered its iconic trade dress. This accidentally raises an interesting question as to whether a store front could qualify as an "article of manufacture" under section 171...
Bill Harding of Zeis Weiderman, Malek, posted an interesting discussion of animated computer-generated icons design patents and special procedures available for prosecuting such patents before the PTO. This little-known type of design patent has special procedures that have been in place since 2005 for this unique type of design patent.
For those who are interested, the Intellectual Property Owners Association will be offering a webinar for CLE credit on February 6 at 2:00 PM ET titled Design Patent Protection: An International Overview Including the Hague Agreement. The webinar will cover changes that the Hague Agreement will bring to design patent law, which continues to be a worthy topic of discussion.
For those of you in the Portland, Oregon area, Lane Powell attorneys Brenna Legaard and Jay Smith-Hill will co-present group breakout sessions at the Technology Association of Oregon’s “Legal Forum: Trademark, Copyright, and Design Patent Boot Camp” at the Oregon Zoo on February 14 from 7:30 a.m. to noon. Brenna Legaard will be presenting on design patents.
Finally, on February 3 at 1 PM ET, the American Bar Association Section of Intellectual Property Law and MARQUES (the European Association of Trade Mark Owners) are co-hosting a webinar discussion regarding EU design law and some of the differences with U.S. design patent law. The session will cover what subject matter is protectable, the validity tests of “novelty” and “individual character,” the exclusion for “solely dictated by technical function,” registered (25 years) and unregistered (3 years) Community design rights, and enforcement. The webinar will also touch on some of the similarities and differences with the Community Trade Mark regime.