For more than a century, design patents have been the oddballs?if often the good-looking oddballs?of intellectual property law. The patents themselves don’t make for heavy reading; they’re just a series of drawings depicting the ornamental design of a product. Lawmakers and judges focused more on technology-oriented utility patents, even as some companies found design patents to be an increasingly useful tool. But over the past year and a half, the U.S. Court of Appeals for the Federal Circuit has issued a series of rulings that have, design patent experts contend, whittled down the protections the patents traditionally conveyed, and created a confusing, unsettled area of law. The design patent had started to seem like a prisoner on death row.
Then, in late November 2007, the Federal Circuit announced that it both was granting a rehearing en banc?the first time ever for a design patent case?of a controversial decision and was ready to reexamine the fundamentals of design patent infringement. The move was seen by practitioners as nothing short of a midnight call from the governor.
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