The Role of Design Patents in Patent Troll’s Litigation Designs

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The Role of Design Patents in Patent Troll’s Litigation Designs


The business world snapped to attention when Apple obtained a $400 million verdict from Samsung in a dispute largely focused on design patents covering how smart–phones look. The Supreme Court has agreed to take up the question of how to assign damages for design patent infringement—that is, how to distinguish between the value of the design and the value of the underlying product.

In an event hosted at the National Press Club by the Internet Association, a consortium of leading Internet companies, discussion turned to whether the outcome of Apple v. Samsung might embolden patent trolls to look to design patents as a new resource for extracting licensing deals or litigation settlements from their targets. As reported by Law360 (subscription required), representatives of groups and businesses that filed friend–of–the–court briefs in the Supreme Court case warned that a continuation of the current model—in which huge damage awards can be associated with patents to what a product looks like—would make design patents strong candidates for assertion by patent trolls. This concern makes this clash of the smart–phone titans worth following for businesses in other fields, including retailers of clothing, shoes, or any products notable for their appearance and design.

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