Counting Design Patents

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In 2007, Samsung Electronics received over 550 design patents — the most ever issued to a single company in one year.  Sony holds the most design patents, and is followed closely by Nike. The following table shows the company awarded the most design patents each year:

ScreenShot004Louis Zarfas is the primary examiner associated with the most issued design patents. Mr. Zarfas has allowed over 16,000 design patents since his first (as a primary) in 1978. Over 1,000 of those design patents relate to shoe designs claimed by companies such as Nike, Reebok, AVIA, Asics, LA Gear, Rockport, Sketchers, Wolverine, Keds, Louis Vuitton, Timberland, Berluti, and Kangaroos.

Recently issued design patents (issued 2000–2007) were, on average, pending for 16.2 months. Companies with at least 100 design patents during that period had about one month less pendency than those with fewer patents. Nike has prosecution down to a science — and averages less than 9 months pendency (filing to issuance). Toward the other end of the pendency chart, Apple averages over 21 months.

During the 2000–2007 period, approximately 75% of examinations were handled by primary examiners without any assistance from an assistant examiner. As with utility patents, the pendency for cases without an assistant is significantly less than for those with an assistant. Here, the difference is about two months.

 * These numbers are based on a recently compiled dataset of 300,000+ design patents issued since 1976 on file with DDC.

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

16 thoughts on “Counting Design Patents

  1. In my opinion, the entire issue of the increase in the number of design patents is a bit of red herring. As an expert witness in major design patent cases I have been struck by the lack of sophistication most attorneys and their clients bring to the process of creating and defending design patents. Over the past 15 years the cognitive sciences have provided deep understanding into how we view the world around us including the products we purchase and use. Yet, I rarely encounter even the most basic use of this body of knowledge in the creation of patent filings or in the proffering of opinions on design patent infringement.

    Until the PTO and the larger legal community brings more scientific rigor to the design patent scene there is little hope that design patents will achieve the level of importance they deserve. The visual design of the products and services we create have a major (and measureable) impact on brand recognition and purchase decisions which in turn drive corporate profit.

  2. Dear Mr. Saidman:
    I believe that the recent activities undermining the rights of patentees in any U.S. patents are circumspect. I note that Congress is starting to act in the insurance industry as it seems that many lobbyists have paid-off state bureaucrats working in insurance departments. link to bloomberg.com

    It may behoove the FBI to impart a similar investigation of the Federal Bureacracies.

  3. 1. Lou Zarfas has, over the years, proven himself to be one of the best and most conscientious design patent examiners in the PTO. As one example, he is the only design patent examiner I am aware of who has been a member of the AIPLA Industrial Designs Committee, and who has regularly attended and participated in committee meetings, for as long as the committee has been in existence.
    2. Despite the fact that court decisions, especially over the past 2 years, have greatly wounded design patents, they remain the only game in town to protect designs. Without them, the product designers are truly at the mercy of the knock-off artists. In addition, the Egyptian Goddess en banc rehearing has the potential to effect a major course correction for design patent jurisprudence.
    3. It’s hard to know if there’s a fear factor when it comes to design patents, because it’s hard to measure how many knock-off artists steered around a particular product design because it was protected by a design patent. It’s like measuring how many burglars didn’t break into your house because you had an alarm system. Oh, sure, design patents can be “designed around”, just like utility patents. And a good design lawyer will draft a design patent claim that is as broad as the prior art will allow, to make it as difficult as possible for the “design arounds” to do their thing.
    4. I think Chuck Mauro may have gotten it backwards. It seems that the issue is not how many patents are issued but rather creating a limited number of high quality innovations that lead to market-dominating design patents. Try knocking off an iPod and see how far you get.

  4. Dear Mr. Mauro:
    I believe we can organize the issues surrounding recent developments in the patent rules and laws into two camps.
    First Camp: internationalists. It is not even reasonable to deny that the internationalists desire to destroy borders and create a one world market place. The patent monopoly substantially interferes with this. The reality is that the patent monopoly is a market control mechanism that defines markets based upon geo-political boundaries. This is contrary to the internationalists. They desire to define markets based upon resource control and control markets based upon market strength. Key to achieving this is destroying the geo-political based monopoly power of the current patent system.

    This is not to say that patents have been wholesale abandoned by the internationalists. Rather, they desire to have a one world patent, which will come about in less than 5 years. The problem the internationalists face are the next 20 years of patent rights that are present in the United States jurisdictions. I believe that there is an agreement between the internationalists that the one world patent cannot come into effect until a substantial percentage of existing patent rights are placed in jeopardy.

    The second camp are the government bureaucrats. These people are simply pawns of the internationalists that now operate the Federal Government to the detriment of the people of the United States. These bureaucrates are given unfeasible requirements and are forced to ignore existing constitutional and statutory laws to that end. ciencypatents being driven

  5. It is interesting to note that in the actual marketplace, Apple crushed Sony with the iPod and pushed Samsung from the premium phone layer with the iPhone. It seems that the issue is not how many patents are issued but rather creating a limited number of high quality patents that lead to market-dominating innovations.

  6. “Utility patents are only one ingredient in BusinessWeek’s measure of the most innovative companies; in the consumer market, creative design and product delivery are just as important. “Design is the one product differentiator left,” says Perry Saidman of Saidman DesignLaw Group. Accordingly, design patents make up a loud minority in our list. In 2007 Banner & Witcoff earned them on Nokia phones, Microsoft graphical user interfaces, and Nike shoes, in addition to utility patents for AT&T and Amgen. Carmakers are also big users of design patents, using them to protect everything from bumper design to windshield wipers. Congress has left design patents out of the greater patent reform debate, though two recent court decisions could greatly diminish their value. But that’s for the litigators on our list to figure out.”

    link to iplawandbusiness.law.com

  7. I think that one of the reasons why samsung has so many patents is due to the high output of mobile phone designs. Where as Sony, isn’t a large player in that market and concentrates on other consumer electronics.

  8. I would just like to say, “Merry Christmas” to all.

    This blog, which makes a habit of fanciful postings for every minor holiday that comes and goes, had not a comment for the BIG ONE.

    So, to the 80% of Americans who identify themselves as Christ-ians, Merry Christmass.

  9. “Where is the Greek chorus of complainers that the quality of design patents has been degraded by this vast increase in workload?”

    Because no one fears design patents.

  10. DC;

    Why is any Examiner’s name relevant to the data? I thought it was accepted practice in the patent bar that official actions taken by Examiners are taken by the Office, without delving into personalities. As a prosecuting attorney I know well that it serves the client’s interest to deal with the Examiner as an individual rather than just another cog in the Director’s (nee Commisioner’s) machine. However, my interest in the identity of the Examiner ceases with the patent grant.

    Mr. Zarfas is the SPE of the only art unit that examines design applications. It stands to reason his name would appear on an inordinate number of design patents, including those examined by junior examiners under his supervision.

  11. “Where is the Greek chorus of complainers that the quality of design patents has been degraded by this vast increase in workload?”

    I’m working on it.

  12. I found two interesting questions in these numbers. First I wonder if the top nine – all foriegn – design patentees realize what the CAFC has been doing to the scope, and thus value, of U.S. design patents in recent years? Secondly, I wonder if the very significant dip in 2002-2006 design patent issuances shown here was related to the PTO finally going after “Invention Promotion” companies [and some of their patent attorneys] which were filing thousands of design patents for individual inventors who were paying large amounts of money [and probably thought they were getting REAL patent protection] on things like bait buckets with surface ornamentation added by the patent drawing preparers, not the inventor, until finally caught at it.

  13. “As with utility patents, the pendency for cases without an assistant is significantly less than for those with an assistant.”

    As Captain Renault said in Casablanca: “I’m shocked, shocked to find that …”

    Where a primary oversees an assistant, the result is more likely to be a rejection and increased pendency. When the primary handles the office action by himself/herself, the result is more likely to be an allowance and decreased pendency.

  14. So here is a 30 year trend that shows a nine-fold increase in design patents issued, presumably with a nine-fold increase in the total number of claims presented and allowed. Has the examiner corps increased by the same factor? Where is the Greek chorus of complainers that the quality of design patents has been degraded by this vast increase in workload?

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