by George Raynal
The effect of applying Markman to design patent claim construction prior to determining infringement has resulted in an overwhelming likelihood that an accused infringer will bring a successful motion for summary judgment of non-infringement. < ?xml:namespace prefix ="" o />
In a survey, 63 design patent infringement cases have been identified since Markman was first applied to a design patent claim in Elmer v. ICC Fabricating, Inc., 67 F.3d 1571 (Fed. Cir. 1995). Of these, the accused infringer moved for summary judgment of non-infringement in 43 cases. The movant was successful in 31 (72%)[1] of those 43 cases, whereas the motion for summary judgment of non-infringement was denied only 12[2] times. Of the successful 31, ten[3] were appealed and only one[4] of those ten was reversed because the court could not agree that no reasonable jury could find infringement based on the record.
Additionally, summary judgment of infringement has been granted in only four design patent infringement cases since Elmer.[5] A motion for summary judgment of infringement has been denied once.[6]