Design Patent Infringement
A design infringement is where an individual infringes an enlisted design during the span of enrolment. Eventually, an explanation for a design patent infringement varies in each jurisdiction.
Design Patent infringement occurs when a firm or individual violates the terms of a patent’s design. Design patents protect the ornamental characteristics of a manufactured product.
To assert the infringement, you need to show that a casual observer would not be able to discern the difference between a patented object’s design and the accused object’s style when the two designs are presented side by side.
Design patents protect innovative and unique non-functional ornamental designs or products. They can safeguard furniture, jewelry mobile phones, mobile phones, sites like the Google homepage and Apple’s dropdown menus, etc.
In today’s article, we will be discussing every detail that needs to consider while representing the Design Patent infringement case.
How to determine the Design Patent Infringement?
Design patents are different from utility patents, which safeguard the development of new and useful products, processes or machines, or formulas like appliances, electronics, or engines.
The two tests that are used to determine the infringement of a design patent are:
Ordinary Observer
This test examines the possibility that a normal person can understand a certain similarity in the design of two items. Imagine a person standing in the store trying to differentiate which of two things to buy.
If they can’t distinguish any difference when only looking at the exterior design it could be an argument for a patent violation that is based on substantial similarities. An ordinary person is essential since patent holders cannot examine things objectively. An outside observer who isn’t trained in design can look at objects with no bias.
Three-Way Visual Comparative Test
The three-way visual comparability test employs three different designs to make comparisons. The patent-pending design is placed in one corner, and the claimed model is in the center, with the other designs that look similar to those closest to known prior artwork on the opposite side.
Since these tests are based heavily on how a person perceives something, you may have the results from these tests being challenged in the courtroom.
Why is Design Patent Infringement Important?
If you design a product design, you must be aware of whether you’re infringing the intellectual property rights of another person to obtain an invention patent. If you own the design patent, be on the lookout for other designers who may try to duplicate the design.
If you’re developing an original design for an item, you’ll need to ensure that there isn’t a patent that already exists for an identical product. If it does not, you’ll have to spend a lot of time and money to proceed with your concept.
You could also put yourself at risk of infringement on the patent for a design. Be sure to search for the prior art. The owners of design patents must also keep an eye out for any potential violations. If a person or company infringes on your patent, you’re entitled to legal rights.
Things to Consider Before Taking Legal Action to Design Patent Infringement
Examine the strengths of this claim
The evidence will back your argument in court. Maintain detailed records and explain your case in an approach that is easy to comprehend.
Consider whether your claim is true
You’ll have to back your claim that another person has violated your patent. You can seek assistance from an independent expert in design to help you prove your claims. In some of the most prominent design patent infringement cases, experts from independent sources played an important role in the final decisions of the cases.
Review changes to the past standard and court rulings
Before proceeding with legal action, make extensive prior research on the art. In the Apple v. Samsung case, the U.S. Supreme Court also eliminated a variety of standards from the past that included non-trivial advancement and the point of difference.
Non-trivial advance is a measure of the significance of changes when they are compared with an identical design. A point of distinction, the test that was used in previous cases, required proof that a design that is accused of infringement of a design patent is unique in several ways which distinguish it from other designs.
Consequences of Design Patent Infringement
The penalties for design patent infringement are contingent on which side you’re on in the case. If you commit design patent infringement, a patent holder may sue you for damages.
- These damages could be in the form of money the patent holder loses because consumers bought copies of the product. The damages could also be the financial difficulties that the company had to face at the time that it was on sale in the market.
- Role reverse is one of the tools employed to determine the amount of royalty and damages due. Eventually, the owner of the patent is also paid a royalty. Patent attorneys put themselves on the opposite side of the argument.
- When they do this, they look at the other side and the possible claims that could be used to lower the amount of royalty paid. This exercise can help prepare to defend against an infringer of the design patent.
If your company violates the design patent, you could be accused of infringement in court. A lawsuit can damage your reputation and lead to your business losing customers who are loyal to you.
What distinguishes utility patent infringement from design patent infringement?
Infringement on a utility patent cannot be seen. If an article is suspected of violating a utility patent, a line-by-line claim assessment has to be done. As a result, the existence of new features wouldn’t affect the conclusion that infringement occurred.
Nevertheless, design patents only cover visual elements. And it is because of this visual comparison that aesthetic alterations and improvements can be made to an alleged design to sufficiently distinguish it from the alleged infringing design.
Design Cease of Rights and Desist Letter
If you suspect that someone has violated your design patent rights, the first step is to issue a cease and desist notice to the infringing person.
The letter should include the following details:
- A description of your rights as an intellectual proprietor in your design patent including the registration details;
- An explanation of what the infringing action is about, and could comprise written information, images of the item, and images of the item being sold online
- Legal analysis that explains how the product violates the rights of your design patents;
- Demand that the other party immediately ceases from engaging in the infringement of their rights;
- A request for evidence that compliance is met within 10 working days of the date requested;
- A reason why if proof of compliance is not provided the applicant is prepared to start a lawsuit for infringement of design patents.
The aim of a cease and desist notice is to settle issues involving infringement of a design patent in an efficient and timely method that is not a court proceeding that is beneficial for both parties.
This step will hinder the possibility of pursuing a lawsuit in the future however
Conclusion
Design Patent infringement occurs when a firm or individual violates the terms of a patent’s design. Design patents protect the ornamental characteristics of a manufactured product. When developing a product design, it’s important to determine whether you’re violating the rights of another party to a design patent. If you violate a design patent, the patent owners may file a lawsuit against you for damages.
At OnDemand International, we would assist you in registering your design and will further make sure that you are not copying the design. Contact our experts to know more about design patent infringement.
FAQ’s
The method used to determine patent infringement is to determine if the design in question appears very similar to a patent design to the average person.
Infringement of a registered design right happens when the design you have registered is copied by a third party. In the absence of protection registration, it is necessary to show the design was copied.
Patents protect how something actually functions and not just its appearance. Thus, the protection offered with a patent’s registration is more extensive than the protection offered by registered designs.
The result of cases involving the infringement of designs varies, if you can prove that an individual or company did not respect your patent, your attorney will be able to help defend your case in an action for patent infringement.
The design should be unique or brand new & the design must not be previously known to the public also the design must be distinguished from designs of other designers or designs
