In a pair of recent decisions, issued two weeks apart, the U.S. Court of Appeals for the Federal Circuit (CAFC) delved further into the thicket of design patent issues in attempting to clarify how one is to determine whether a design patent has been infringed. One might think that determining whether a design patent has been infringed should be a relatively easy endeavor. Yet, the CAFC’s two most recent forays into design patent jurisprudence demonstrate, again, that litigants and the courts continue to struggle with this issue.

More than five years ago, we began observing here that the CAFC had awoken to the increased difficulties that litigants and the lower courts were having in the application of design patent law.1 In the interim, the rules by which to evaluate the scope of design patents and infringement have changed greatly. As we wrote here, approximately 18 months ago, the CAFC made a tectonic shift in design patent law when it held that its points of novelty test no longer needed to be applied.2 Unfortunately, because this recent pair of decisions provides little further guidance as to how to determine whether a design patent has been infringed, and it complicates and creates more issues than it clarifies, we expect that the CAFC will continue to be called upon to review decisions related to design patent infringement and validity.

Design Patent Basics