U.S. Supreme Court Decision May Make It Easier to Protect Design Patents

Article excerpt

Believe it or not, a federal appeals court decision involving something as mundane as a fingernail buffer may make it easier to protect design patents from infringement.

Oklahoma City attorney Martin Ozinga said it is difficult, with design patents, to prove the usual patent factors of newness and non- obvious improvement over what others have done previously.

"It becomes more of a visual approach over a legal, written description approach," he said of a recent decision out of a federal circuit court.

Design patents cover what a product's ornamental features look like, not its functionality.

Think of the distinctive shape of a Coca-Cola bottle versus its Pepsi and Dr Pepper rivals.

In 1871, the U.S. Supreme Court's Gorham decision adopted an "ordinary observer" test for deciding whether a design patent has been infringed. Gorham involved a design patent for tablespoon and fork handles.

"They tried to come up with a way to talk about how you can tell how two things look differently, in order to decide whether someone should get a patent, and whether someone is infringing on a design patent," said Ozinga, head of the intellectual property department of the Phillips Murrah law firm.

Ozinga said the new Egyptian Goddess v. Swisa decision "is going to make it easier for people who have patents to defend them."

The unanimous decision out of the Court of Appeals for the Federal Circuit moves away from a verbal approach to design patents - the separate "point of novelty" test that requires explaining differences - to a more visual method. …

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