Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. I've been on a non-IP assignment the last couple of days, so today's briefing is, well, abbreviated. Here's what I've got:

• Federal Circuit delivers design patent guidance.

• Drone company asserts patent despite touting complete technology makeover.

• Haynes and Boone partner comes full circle.

As always you can email me your thoughts and follow me on Twitter.

 

Federal Circuit Gets Decisive on Design Patents

Last week I wrote about a Federal Circuit panel that sounded poised to deliver a letdown on the state of design patent law post-Samsung v. Apple.

On Thursday, a panel led by Judge Raymond Chen gave us a lot of new law on a case that hadn't been nearly as bright on the radar screen. Not my radar screen, at least. Curver Luxembourg v. Home Expressions appears to have been burning bright on University of Oklahoma law professor Sarah Burstein's.

The court held that Curver Luxembourg cannot assert patent D677,946, which is on "a pattern for a chair," against allegedly infringing baskets. Curver argued that it had originally wanted to patent just its overlapping Y design, as shown in its patent, and that an examiner had forced it to designate a specific article of manufacture.

The examiner was right. "As Curver itself acknowledges, our law has never sanctioned granting a design patent for a surface ornamentation in the abstract such that the patent's scope encompasses every possible article of manufacture to which the surface ornamentation is applied," Chen worte. Judges Todd Hughes and Kara Stoll concurred.

Citing in part a 2015 article by Burstein, Chen wrote that patenting designs in the abstract would be untenable. "In contrast, tying the design pattern to a particular article provides more accurate and predictable notice about what is and is not protected by the design patent," Chen wrote.

Curver argued that under Samsung v. Apple, the three-dimensional panel depicting its design could be the patented article of manufacture, as one of the components in a multi-component product.

Chen ruled that Curver waived that argument, but added a holding on the merits. "In Samsung, the components covered by Apple's design patents were parts of a concrete 'multicomponent' smartphone product, not a surface ornamentation disembodied from any identifiable product, as here," he wrote.

So that's one small clue about how Samung v. Apple might be applied in the future. Curver may also point to how the Federal Circuit is going to decide the Columbia Sportswear case argued last week, where the patent claims "heat reflective material."

Squire Patton Boggs partner Steven Auvil had the winning argument for Home Expressions. Berkeley Law professors Erik Stallman and Jennifer Urban provided amicus support. Curver was represented by Greenberg Traurig.

   

Hovering Above Infringement

We've got a new entry in the drone wars. Pierce Bainbridge Beck Price & Hecht is asserting a patent on "release and hover" technology that it says is infringed by the ZeroZero Hover 2 and Hover Camera Passport.

LR Acquisition v. Zero Zero Robotics alleges that the ZeroZero products can be launched by throwing them into the air and letting them hover, like so. The complaint signed by Pierce Bainbridge partner Brian Dunne alleges that Berkeley startup Lily Robotics originated this technology in 2016 with U.S. Patent No. 9,612,599, entitled "Launching unmanned aerial copter from mid-air."

That seems pretty straightforward. But there could be a fly in the ointment. LR Acquistion, which does business as Seon Drone, acquired the patents from Lily in 2017. The company's website explains: "We loved what the team at Lily was trying to invent, but the execution lacked. After finalizing the purchase, we reviewed all they have done, and frankly had to start over."

So that might be a problem. In the meantime, you can pre-order your Seone Waterproof Follow Me Drone With 4K UHD Video Camera at seondrone.com.

IP Lateral: Haynes & Boone

For more than 20 years, Lee Johnston was an alumnus of Haynes and Boone. Now he can call himself a partner.

The firm announced that the business and IP litigator has rejoined the firm in Denver after a decade at Dorsey & Whitney and 12 years at Holland & Hart.

Johnston noted in a written statement that a number of the lawyers he worked with 25 years ago as an associate remain at the firm. "That spoke volumes to me," he said. "It is incredibly rare and says a lot about the culture and team environment at Haynes and Boone."

That's all from Skilled in the Art today. I'll be back with a full briefing on Tuesday.