On December 6, 2016, the Supreme Court clarified the scope of
damages in a design patent infringement case.
Unlike utility patents which have utilitarian functions, design
patents relate to the look and feel of a new design. The design is
reviewed by the Patent Office for issues relating to novelty and
obviousness. The scope of a design patent is based on the drawings.
If a design is dictated by its function, that design may be
declared invalid. An infringement analysis is based on the ordinary
observer test – in the eye of an ordinary observer, does the
resemblance of one design deceive the observer, inducing the
observer to purchase one design supposing it to be the other?
In 2011, Apple sued Samsung for infringement of design patents
and utility patents. Samsung countered with infringement claims of
its own. The two companies have been battling these cases out for
years. In March 2015, the Court of Appeals for the Federal Circuit
confirmed an award against
