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A welcome treat for most patent litigators is the chance to handle a “design patent” case. These cases don’t appear too often, but when they do, they’re invariably interesting. Today’s Federal Circuit decision in Bernhardt, L.L.C. v. Collezione Europa USA deals with this fascinating subject.

On the surface, design patents seem quite simple. Unlike their far more common “utility patent” brethren, design patents do not protect the functional features of an invention. Quite the contrary, they protect only the “ornamental features” of a product. Basically, this means that the appearance of a product can be protected with a design patent – provided the appearance is new, unobvious and not otherwise subject to any of the various pitfalls that delight defense attorneys while dashing the dreams of patentees and their counsel.
Continue Reading Federal Circuit Clarifies Evidentiary Standard for Proving Design Patent Infringement

That’s the title of Michael Smith’s excellent op-ed piece appearing in last week’s “Texas Lawyer.” Michael ably takes on those who naively claim that patent owners, and the lawyers who help them, are “patent pirates.” “Plaintiffs in patent litigation are hardly pirates -they are simply investors who bought an asset and seek a return on…

I suppose it’s natural that your views on the patent system depend largely on who you are and where you stand. Thus it doesn’t surprise me that, according to a recent article, Sun Microsystem’s President and CEO Jonathan Schwartz thinks the U.S. is “too free to issue patents.” Striking a little closer to home, he also has some choice comments for “spurious litigators” (who? me?) who, supposedly, somehow stand in the way of “innovation.”
Continue Reading Sun Head Slams Patent System

The always interesting subject of “do it yourself patenting” came up in Steve Nipper’s “The Invent Blog” earlier today. (Steve somewhat graphically likens this to pulling your own teeth.) Obviously, those of us professionally engaged in obtaining and enforcing patents have a personal stake in the matter – which might bias our thinking a bit. But still, I agree with Steve and think there’s a lot to be said for leaving patent prosecution to those who know what they’re doing. As someone who frequently has to defend the validity of patents in court, I speak from experience here.
Continue Reading Do it yourself?

Monday’s Federal Circuit decision in Insituform Technologies v. CAT Contracting, et al. answers one of the deepest, most profound questions ever to arise in patent jurisprudence. That question – asked by corporate executives everywhere – is, “Why does patent litigation cost so damn much?”

The Insituform decision is a fascinating example of a system run amok. It’s remarkable not for its actual holding, but for its account of the tortured history the case has had in the fourteen years since being filed. Procedure and endless obsessing over minutiae have displaced lesser concerns, such as rendering a more-or-less reasoned decision while the litigants are still young enough to care.
Continue Reading That’s where my money goes…