Design Patent Links - Oct. 28, 2013

With all eyes on the world series, it was a slow week in design patent news. Unfortunately, I couldn’t find any world series-related design patents, but I did find this rather witty design for a “baseball fan…”

Lorri Cooper of Pearne & Gordon LLP has published an in-depth review of the PTO’s new design patent policy concerning dashed lines that was announced at the PTO’s Design Day 2013 by Joel Sincavage, the Design Practice Specialist of Technology Center 2900, the Patent Office. According to Ms. Cooper, design patent practitioners can protect future continuations in design patents by using the MPEP provision which allows for “a narrative description in the specification can supplement the drawing disclosure to define the scope of protection sought by the claim.” See MPEP § 1504.04. This language may point out specific features thought to be novel, and may pave the way for the future inclusion of additional dashed lines in continuations. In the wake of the Federal Circuit’s decision in In re Owens, this is precisely the type of approach which would support the written description requirement for future continuations and should be seriously considered by all design applicants.

CreativeArtsAdvocates.com has penned an interesting article about the fact that Design Patents Are A Boon for the Fashion Industry. The articles highlights many of the unique advantages of design patents for the fashion industry, including the speed and secrecy with which a design patent application may be prosecuted before the PTO.

It was only a matter of time until design patents became a part of the medical marijuana debate. The Wall St. Journal is reporting that medical marijuana firm Cannabis Biotech, is enlisting the help of a patent attorney to seek design patent protection for a unique marijuana delivery device. Given the federal government’s stance on medicinal marijuana, it will be interesting to see how the USPTO treats an application specifically directed to marijuana delivery.

Gizbot (among others) is reporting on a unique design patent application filed by Samsung, which appears to show that Samsung is entering the smart glasses competition against Google Glass. Given that Samsung has been stung by design patents in the past, it makes sense for them to seek design patent protection of their own, and to make sure the PTO has considered prior art designs like Google Glass.

Design Patent Links

The last few weeks have seen a flurry of design patent activity, ranging from academia, Computer-Generated Icons, and even the fashion industry.  It’s far too much to post about separately, so, without further ado, we give you this week’s Design Patent Links!

“The Fashion Law” blog is reporting on Stella McCartney’s design patent for a bestselling Lucia mesh polka dot dress from her Fall 2012 collection.  The London based company’s design patent arrived just in time for fashion week.  According to New York Law School’s “Legal As She is Spoke” blog suggested that McCartney’s design patent was just for publicity, “but could prove not to be all that helpful.”

Real Housewifes of New York star and owner/inventor of Yummie Tummie Heather, Thomson, might beg to differ with Legal As She Spoke. Yummie Tummie was sued by shapewear heavy hitter Spanx on March 5, seeking a declaratory judgment of noninfringement of several of Ms. Thomson’s design patents after Yummie sent Spanx cease and desist letters concerning Spanx’s design patents.  The National Law Review provided a nice summary of this shapewear design patent case. Many other outfits are also covering the story, including IPWatchdog, Womens Wear Daily, New York Magazine, and the Huffington Post.  But what several commentators failed to mention is that this is not Yummie Tummie’s first design patent rodeo.  As we have mentioned before on this blog, Yummie Tummie settled a declaratory judgment action brought by Maidenform after Maidenform paid Yummie Tummie 6.75 Million.  In 2011, Yummie Tummie also filed a design patent infringement action against LF USA, a subsidiary of the Hong Kong-based apparel manufacturer Li & Fung, Ltd.  Yummie Tummie has aggressively defended its design patents in the past, and we suspect this case will be no different.  Spanx may be surprised by how not “Yummie” this case might become for them.

As design patents continue to gain credibility with practitioners, academia is also beginning to take note. On April 5-6, 2013, Stanford Law School will host “a major conference on design patents,” titled “Design Patents in the Modern World.” The conference is sponsored by the Stanford Program in Law, Science, & Technology, Samsung Electronics, Nike, and Google and will include public conference on April 5 and a one-day academic symposium with papers on design patents from the leading scholars in the world on design patent issues. Included among the articles slated for discussion is an article co-authored by yours truly and University of Kansas School of Law professor Andrew Torrance. The article is titled “(R)evolution in Design Patent Subject Matter: The Shifting Meaning of ‘Article of Manufacture,” and provides an historical review of the “article of manufacture” requirement in design patent law. Stanford’s design patent conference will be open to the public.

Design Patent Links - January 22, 2013

    

Image courtesy of digitalart / FreeDigitalPhotos.net

There has been a great deal of design patent commentary in the last week despite an apparent slow-down in new design patent cases.  Here's the latest analysis from the best and brightest in design patent law:

As we noted in our design patent roundup last week, it looks like new design patent complaints may be tapering off.  Some other commentators have noticed this overall trend as well.  Lisa Schuchman, of ALM's Corporate Counsel website has provided a thorough discussion of why design patent suits are becoming less prevalent.  The analysis is based on data provided by Robert Walters, a partner at McDermott Will & Emory, showing a significant decline in new design patent cases in E.D. Tex, N.D. Cal., D. Del., and the ITC.

Despite the apparent decline in new lawsuits, however, it is clear that design patents remain a cost-effective form of intellectual property.  Dennis Crouch of Patently-O recently posted data from the USPTO showing that most design patents are issued in approximately 12 months.

In addition, there are some indications that the fashion industry is becoming more aware of the usefulness of design patents. The fashion law blog, The Sole PurseSuit, recently discussed the effect of the Lululemon design patent suit on the fashion industry and suggested some fashionable designs that might be considered for design patent protection, including "the Louboutin Bow."

Unlike the fashion industry, Silicon Valley has long understood the value of a robust design patent portfolio.  Often times, monitoring the design patents granted to tech giants can give clues about the next generation of tech gadgets.  For example, Patent Bolt recently discussed a mysterious design patent recently granted to HP on a next generation docking station.  Although HP's Design Patent No. 673,391 raises more questions than answers, it will be interesting to see what HP intends to dock with this device in the near future.

Lastly, for those who follow Apple's design patent portfolio, several blogs, including TechSpot, noted Apple's new design patent on its popular trackpad design.  Over the years, Apple has shown an impressive ability to successfully prosecute relatively simple design patents for its unique devices.  This particular design patent is drawn to the rectangular trackpad used on many laptops, including Apple's line of MacBook products.  Several other blogs discussed Apple's new Design Patent No. 674,382, including The Verge, and TUAW.

Design Patent Links – January 14, 2013

Christopher Carani of McAndrews, Held & Malloy wrote an excellent analysis of Apple’s smartphone litigation with Samsung and several other design patent cases in an effort to discern some overall guidelines for assessing design patent infringement under the ordinary observer test.  Mr. Carani’s article was re-posted by permission on Patently-O.

Speaking of Apple v. Samsung, the German version of their ongoing design patent war will be delayed after some fancy footwork by Samsung in the EU Trademark Office in Alicante, Spain, as reported by Bloomberg.

Stephen L. Peterson of Finnegan, Henderson, recently penned an article on Lexology.com discussing several myths about design patent, including the misguided theory that “Design patents can’t protect fashion.”

IP360 recently posted an article discussing the “Benefits of US Implementation of the Hague Agreement” and the effect on international design patent prosecution. (account required).   Several other commentators recently discussed the ratification of the Hague Agreement as well, including JDSupra , Tom’s Hardware, and Bloomberg Businessweek.

Foss Patents is reporting on an anonymous ex parte reexamination of Apple’s design patent covering a page turning animation.  Apple’s page turning design patents were subject to widespread criticism when they first issued in light of traditional books and the breadth of the patents.  We will monitor this reexamination and update as warranted.

For those who live in the Boston area, the Boston Patent Law Association will be hosting a roundtable lunch seminar on “The Design Patent/Copyright Conundrum” on January 24, 2013 at Bingham McCutchen.  The roundtable will include discussion of the nature and scope of protection afforded by design patents and copyrights, the overlap in protection between the two, standards for infringement, and remedies available for infringement of design patents and copyrights.