Litigating Design Patents: From Claim Construction to Total Profit Damages

45 questions on litigating design patents, answered and cited by the UpLaw editorial team.

• Can a design patent be invalidated for indefinite drawings?
• Can a design patent cover a pattern with no product attached?
• Can a patentee recover both § 289 total profit and § 284 damages?
• Can claim language limit a design patent even when the drawings don't?
• Can functionality reduce a design patent to covering nothing?
• Can you walk through a design damages fight from infringement to base?
• Did LKQ make design patents easy to invalidate?
• Do all views of a design patent count in an anticipation analysis?
• Does aesthetic functionality apply to design patents?
• Does consumer desire for a matching part make a design functional?
• How does a court construe a claim made of drawings?
• How does prior art affect the ordinary-observer comparison?
• How does the density of prior art change a design patent's scope?
• How does the functionality doctrine work in practice on a partly functional design?
• How does the three-way comparison work in a real case?
• How does willfulness work in design patent cases?
• How is the article-of-manufacture question litigated?
• How long does a design patent last?
• How narrow is a design patent's scope?
• How should a design patent defendant build its case?
• How should a design patent plaintiff build its case?
• How should parties adjust to the post-LKQ obviousness standard?
• Is there a doctrine of equivalents for design patents?
• Must a court always consult the prior art in a design infringement case?
• Should a court single out one feature during design claim construction?
• What are the Berry Sterling factors for design patent functionality?
• What are the essential takeaways on design patent litigation?
• What did Lanard Toys decide about applying a design to a new article?
• What did LKQ v. GM change about design patent obviousness?
• What did the Supreme Court hold about the "article of manufacture"?
• What does 35 U.S.C. § 171 protect?
• What does 35 U.S.C. § 289 provide?
• What do the lines in a design patent drawing mean?
• What happened to the point-of-novelty test?
• What is the central paradox of design patents?
• What is the claim of a design patent?
• What is the marking trap for design patent owners?
• What is the ordinary-observer test for design patent infringement?
• What is the test for anticipation of a design patent?
• What test identifies the article of manufacture after Samsung v. Apple?
• What was at stake in Samsung v. Apple on design patent damages?
• What was the Rosen-Durling test and why did it protect design patents?
• When is a design unprotectable as functional?
• Why does the total-profit remedy exist?
• Why use the ITC for a design patent case?