January 9, 2014

Sunk By Restriction

A CAFC panel decides that satisfying a restriction requirement by eliminating drawings in a design patent application is prosecution estoppel. "In the design patent context, the surrender resulting from a restriction requirement invokes prosecution history estoppel if the surrender was necessary, as in Festo, 'to secure the patent.'" This continues the judicial trend of chopping away patent rights.

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Posted by Patent Hawk at 3:54 PM | Design Patents

September 22, 2013

Fuzzy Babba

Design patents, the product equivalent of trademarks, are intended to ward off copycats. In High Point Design v. Buyers Direct (BDI), over the look of fuzzy slippers, the CAFC lays out the latest over design patent novelty. BDI's Snoozies® takes it on the chin from High Point's Fuzzy Babba®.

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Posted by Patent Hawk at 3:14 AM | Design Patents

March 31, 2013

Patent Law By Design

Tim Owens added a internal (unclaimed) trapazoidal region to his bottle design application. The examiner considered it a substantial change (new subject matter), as did the PTO appeal Board and CAFC. That may seem unremarkable, except it represents a substantial change in the law by PTO fiat, backed by the appeals court.

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Posted by Patent Hawk at 2:32 PM | Design Patents

November 29, 2012


Revision Military sued Balboa for infringing its protective eyewear design patents. The district court wrongly applied its own circuit law, rather than Federal circuit law, in denying a preliminary injunction, as well as applying an out-of-date criteria for determining whether an injunction should be granted. On appeal, that decision was reversed. The CAFC panel (2011-1628) also reminded that it has discarded its own earlier law with regard to figuring out whether to grant an injunction; instead reverting back to case law of 1871. That the courts make laws willy-nilly highlights that Congress is ever-negligent in writing statute, as well as the fact that court-fabricated law, particularly with regard to patents, is capricious.

Posted by Patent Hawk at 1:23 PM | Design Patents

February 25, 2010


The International Trade Clowns (ITC) handed a crock to clog maker Crocs when it asserted 6,993,858 and D517,789: '858 was found obvious and '789 not infringed. Crocs squealed and appealed to the CAFC, which stepped in it and splattered the ITC with both feet: utility and design patent case law.

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Posted by Patent Hawk at 11:24 PM | ITC | Comments (9)

December 19, 2009


Footwear importer Seaway sued Walgreens drug stores for selling those colorful plastic clogs, thereby infringing D529,263, D545,032, and D545,033. The district court booted the case in summary judgment because of anticipation by clog design patent D517,789, owned by Crocs. Seaway appealed, to a split decision on the crucial perspective of §102 in applying the "ordinary observer" test. After failing to address validity in its sea-change Egyptian Goddess decision, a CAFC panel plays catch-up, and drops the ball.

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Posted by Patent Hawk at 1:58 AM | Design Patents | Comments (1)

June 3, 2009

The Rubber Meets The Road

Titan Tire sued Case for infringing D360,862, claiming a tractor tire. "In May 2007, Titan filed a motion for a preliminary injunction to prohibit Case from selling backhoes with infringing tires." The motion was denied, because Titan "was not likely to withstand" an obviousness challenge. On appeal, the CAFC exposits on preliminary injunctions, and adds a dash on design patent obviousness.

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Posted by Patent Hawk at 6:03 PM | Injunction | Comments (2)

May 11, 2009

Back into the Pool

Sofpool sued Intex Recreation over two above-ground swimming pool design patents (D408,546; D480,817). The jury found them noninfringed. The serpentine Egyptian Goddess CAFC ruling, a temporal reel in viewing design patents, intervened between trial and appeal.

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Posted by Patent Hawk at 9:29 PM | Design Patents

September 22, 2008

Designing Law

Egyptian Goddess sued Swisa for design patent infringement. The Goddess stumbled. On appeal, in a 2-1 panel brawl, the CAFC ginned up a new standard for design patent infringement. En banc rehearing resulted in the CAFC rebuffing itself, with the design patent standard for infringement rewound to 1871.

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Posted by Patent Hawk at 9:55 PM | Design Patents

July 18, 2008

Wrap Up

Monster Cable likes its packaging. Monster wrestled licenses from Systemax and its subsidiary Ultra Products for D471,442. Monster has other packaging infringement actions against Timex, and Bizlink and its subsidiary Accell. Monster favors the Eastern District of Texas for its enforcement actions.

Posted by Patent Hawk at 12:08 AM | Design Patents

June 14, 2008


Traditional nunchucks, a martial arts weapon, are two sticks connected by a short chain or rope. Modern-day nunchucks act as videogame controls. LA-based Nyko makes a wireless nunchuck, and won an award for it at the 2008 Consumer Electronics Show in Viva Las Vegas. Nyko's nunchuck resembles a wired predecessor made by Nintendo, holder of nunchuck design patents D556,201 and D556,760. Nintendo's complaint was filed June 10th in the Western District of Washington against Nyko's unlicensed version. Nyko may be in for a different kind of award.

Posted by Patent Hawk at 4:31 PM | Design Patents

June 13, 2008

Display Package

Design patents seem like a little brother to utility patents, all form and no substance. But aesthetics spin money. Even the presentation of a product can help it jump off the shelf and make the cash register ring. So Monster Cable, which packs its cables into a tidy product display, understandably complained that Timex has copied its display package to retail kids' watches.

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Posted by Patent Hawk at 1:08 PM | Design Patents

September 16, 2007

Ordinary Observer

Arminak and Calmar sell trigger sprayers to makers of liquid household products. Arminak sought declaratory judgment from two of Calmar's design patents for sprayer shrouds: 381,581 & 377,602. The district court found non-infringement in summary judgment. On an affirming appeal, the CAFC lays down case law on assessing design patent infringement, finding an "ordinary observer" to have a keen eye; akin to SCOTUS KSR in having "ordinary" be extraordinary. Overturning 136-year precedent, the virulent anti-patent KSR disease spreads to design patents.

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Posted by Patent Hawk at 8:00 PM | Design Patents | Comments (2)

August 29, 2007


Egyptian Goddess (EGI) sued Swisa for infringing design patent 467,389, covering an ornamental nail buffer. The district court found Swisa's product lacking the point of novelty in summary judgment. Egyptian Goddess futilely appealed as a CAFC panel constructs a controversial new test for design patent novelty.

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Posted by Patent Hawk at 9:46 PM | Design Patents

November 18, 2006

Function Over Form

PHG has two design patents for medical labels: D496,405 and D503,197. PHG sued St. John, a competitor, for its medical label sheets, and got a preliminary injunction from the district court. St. John had argued that the design patents weren't valid, because they had a functional aspect. The appeals court took a look (CAFC 06-1169), and decided St. John might have gotten short sheeted.

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Posted by Patent Hawk at 10:53 AM | Design Patents