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News report on an important design patent:
“The US Patent and Trademark Office issued a final rejection of Crocs’ groundbreaking 2006 design patent as part of a reexamination procedure triggered by rival shoemaker USA Dawgs, with which Crocs is enmeshed in litigation.
The Patent Office found that an earlier publication from 2002 disclosed exactly those designs depicted in Crocs’ design patent.”
[This sounds like a 102 rejection, and it will be interesting to see what the Fed. Cir. does on appeal, especially with the PTO BRI claim scope for a design patent claim, because of their case law on how narrow that claim scope is versus their design patent infringement test.
What is it about this comment which you think readers of Patently-O would find offensive? Thanks for your report!
>>the PTO hasn’t even reached first base in its efforts to establish a coherent system for collecting prior art and searching it in the ornamental design patent context.
Design examination could benefit greatly from current machine learning search techniques. Unfortunately, all the auxillary-junior-assistant-deputy commissioners are busy with the pre-search for utility applications. Those pre-search systems are projected to produce worthwhile results shortly after Skynet comes online.
Ben, I don’t think that is the real problem or a solution to the real problem. It would require getting design patent application examiners to accept that a 103 POSITA product appearance designer [most large companies have them] does not just practice in, or use design ideas from, only one small product line. [Far more so than KSR’s “common sense” use of info from other fields test re utility patents]. So that design applications like those just putting a curved beveled corner on another product, or putting a different picture of worms or minnows on a fishing bait can, does not meet 103 to get an automatic design patent grant.
P.S. remember that the claim to be searched for prior art in a design application is the totality of the solid line drawings, not a word search.
I think it is easier today to produce a worthwhile search for a claimed image than a claimed concept.
But of course that wouldn’t affect the problem you identify.
So that design applications like those just putting a curved beveled corner on another product, or putting a different picture of worms or minnows on a fishing bait can, does not meet 103 to get an automatic design patent grant.
Exactly. There should be an enormous list already in place of prima facie obvious design “alternatives.”
And they’ll end up being per se obvious because there aren’t going to be “unexpected results” or “teaching away” or any other applicable sensible “secondary factors” 99% of the time.
Also, short of getting rid of design patents entirely (with trademarks doing the lifting instead) there needs to be a baked-in “you use it or you lose it” defense.
You appear to want to treat 103 art as 102 art (plus, you too are assuming whom may be the person having ordinary skill in whatever particular art field a design may be applied to)
As to the conflation from trademark (entirely different Constitutional authority base, as I am sure that you are aware), patents most certainly do NOT have any sense of “you use it or you lose it” defense.
As has been discussed previously, such a thing favors the mega rich Large Corps, and opens the door to a typical Malcolm dichotomy of advocating for the types that he professes – in his other non-patent law rants – to be against.
“produce worthwhile results shortly after Skynet comes online”
Lols – I have an app for that
Have any design patent infringement suits been quickly and cheaply ended with a 101 “abstract” unpatentable subject matter motion since Alice? If not, that would seem to add to their attraction?
A greatly increased interest in filing design patent applications has been attributed to the August 2012 Apple v. Samsung I jury verdict of nearly one billion dollars. The above chart does indeed seem to show a substantially increased rate of design application filing increases after that date.
But that jury design patents damages award [under the special design patents damages statute] is now back in the San Jose D.C. again after a Sup. Ct. reversal of the infringement damages calculation for the Apple exterior design patents in suit re the multiple component products in suit.
We’re just trying to catch up to where we would have been if the rate from 2005-2008 had continued (doubling every four years), which looks to be about 80,000+/year.
Can you imagine the awesome designs we could have if only the PTO would grant more design patents and thereby directly promote more progress in the ornamental arts? I, for one, remember how drab and uninspiring designs were in the Burlap Era of the 1980s. Now it appears we’re approaching some sort of design nirvana. The ornamentation is exploding around us like so many popcorn kernel icons.
What is the technical degree necessary for the ornamental arts?
Actually, that is a good question, being ignored by the Fed. Cir.
35 USC 103 requires a POSITA test for design patents just like any other patent. A trained and commercially successful and experienced professional industrial design expert should clearly qualify as a POSITA for patented product designs,* but what is the minimum? [It is NOT a lay juror.]
This should be important in design patent litigation, but of course it is of little interest in the PTO [other than for IPRs] since the study by Dennis proved that design application examiners almost never apply 103.
*or a GUI design expert in the case of patented screen displays
You state (without more):
A trained and commercially successful and experienced professional industrial design expert should clearly qualify as a POSITA for patented product designs”
I am not convinced that such is the proper Person Having Ordinary Skill In The Art.
One must first set out what “the Art” means. Does that mean “professional inventors” (of which your professional industrial design experts may be), or does that mean those in the Art to which the designs are applied (and to which, there may be a large and fractured pool of people of whom would be considered “persons” to which it would be their – much lower – ordinary skill level that would need to be determined.
I hesitate to travel the path of the first “professional inventor” path. That path leads directly to Flash of Genius.
“Expert” and “Ordinary Skill” should be an indicator as to what constitutes an appropriate group.
In fact, Paul expressly asked the question “What is the minimum qualification” and stated his view that it would not be lay juror.
The issue is more than a bit of a sideshow since trying to determine the “obviousness” under 103 of “ornamental” designs is an exercise in absurdity. That’s one of the reasons the PTO doesn’t bother. The other reason is that — in spite of the rising demand for design patents (totally unpredicted!) the PTO hasn’t even reached first base in its efforts to establish a coherent system for collecting prior art and searching it in the ornamental design patent context. The obvious first step would be to force applicants to submit their designs in a standard format that would allow them to be placed in a database that was searchable “by design”. But that would be soooooooo onerous for Dave Kappos’ clients. The subsequent steps, of course, would be enjoyed even less. So let’s just have a free-for-all! After all, what could be wrong? We have no prior experience with opening the gates wide open in the patent context.
Thanks for correcting the predicable attempted distortion of what I was actually asking. I usually don’t bother any more.
LOL – did you really ever “bother” to begin with, Paul?
Most likely not. You are far more content NOT engaging in discussions and instead like to cast shadows from the sidelines as you Rah-Rah the IPR and other Efficient Infringer elements.
Here at least, you have a chance to clarify a point, made without antagonism (even though you see such at any indication that you are being questioned), and have an actual dialogue on merits related to a patent law item.
But hey, way to take the low road offered by Malcolm.
In fact, Paul’s express answer to the question IS as I state – stated without more.
I then proceeded to elucidate what I meant by that statement, drawing a distinction – with clear and direct use of English language – the particular legally significant elements.
You should at least recognize that before you jump in.
As to the remainder of your comment (after you jumped in), I have no idea where you pull the straw to build your strawman on a “database that was searchable ‘by design’ or even what you intend to mean by such a comment.
You jump fully into a chance to v0m1t ad hominem towards Kappos, without realizing (perhaps?) that Kappos had nothing at all to do with writing the abysmal law that is design patent law.
What does “force to submit [_] in “standard format” even mean?
As to your snide comment about opening gates, I will dismiss that out of hand, given your well-recognized cognitive dissonance about working in a field, producing something that you detest.
Made additional remarks on Charlottesville and realize once again that the #Fake News Media will never be satisfied…truly bad people!
Gene “More Patents, Easier to Enforce” Quinn voted for this guy, no?
I mean he reached for the lever and he pulled it for a guy who had more sympathy for N@ zis than he did for some imaginary “fake news media.”
That’s kind of interesting, I think. What kind of person does that? I mean other than a total f cking @hole who thinks about nothing except himself.
And nobody could have predicted this, right?
Because Hair Tw ittler was going to “pivot”. He’s very mysterious! Brilliant, brilliant man.
C’mon, all you patent attorneys. Step into the light.
Intel CEO is OUT from Trump council.
“My plea: … set scoring political points aside and focus on what is best for the nation as a whole.”
Well done. That’s one guy who made a fantastically poor decision and is now retreating because he smells the rotting head of the fish.
Actually that’s the second guy because Merck’s CEO also did the right thing.
Law firms should do the right thing and cancel their subscriptions to the Wall Street Journal which has basically put itself at Mango Hairb@ll’s feet. Let the guests use their phones and look up what they need to know. The paper is just another forum for bro culture misognists and r@ cists. Cut the ties.
Because YOUR feelings mean that YOU get to be just as much of a “total f cking @hole who thinks about nothing except himself” and continue relentlessly posting pure political tripe….
Great job Prof.
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