BNA INSIGHTS: Design Patents Sunk in International Seaway Opinion

admin — Thu, 05 Jan 2012 17:38:18 +0000

By Perry J. Saidman, SAIDMAN DesignLaw Group, Silver Spring, Md

It is no longer possible to remain silent while design patents are drowning in the wake of the Federal Circuit’s opinion in International Seaway Trading Corp. v. Walgreens Corp.

Seaway has so obfuscated the key principles of anticipation and nonobviousness in design patent law that they are almost unrecognizable. Although some might argue that this ship has already sailed, I nevertheless feel compelled to throw design patents a life preserver, before they are irretrievably pulled under by the Seaway vortex.

This article is not intended to be an in-depth exploration of the law of anticipation and obviousness as applied to design patents. Rather, it is intended to serve as a critique of the Seaway opinion, in an earnest attempt to halt the spread of its departure from precedent and disconcerting dicta before it gets ingrained too deeply into design patent case law, like so much other Federal Circuit dicta that has preceded it.

The court made the following statements in Seaway regarding anticipation and obviousness in the design patent context:

1. “[T]he ordinary observer test must logically be the sole test for anticipation.”

2. “For design patents, the role of one skilled in the art in the obviousness context lies only in determining whether to combine earlier references to arrive at a single piece of art for comparison with the potential design or to modify a single prior art reference. Once that piece of prior art has been constructed, obviousness, like anticipation, requires application of the ordinary observer test, not the view of one skilled in the art.”

Following is a discussion of the maelstrom created by these two issues…

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Crocs Wins Reversal of International Trade Commission’s Patent Obviousness, Noninfringement Findings

admin — Fri, 05 Mar 2010 13:16:02 +0000

Crocs Inc. won a reversal of obviousness and noninfringement findings involving its patented shoes Feb. 24, as the U.S. Court of Appeals for the Federal Circuit overturned the International Trade Commission’s findings (Crocs Inc. v. International Trade Commission, Fed. Cir., No. 2008-1596, 2/24/10).

Crocs holds both utility and design patents on its popular shoes, and the court addressed issues as to each, but its focus was on the design patent. Further, the court applied its recent Egyptian Goddess rulings on design patents in the context of the ITC’s “domestic industry” query, and…

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U.S. Law Watch » Design Patents

BNA INSIGHTS: Design Patents Sunk in International Seaway Opinion

Crocs Wins Reversal of International Trade Commission’s Patent Obviousness, Noninfringement Findings