Design patents, the patents du jour, have recently been in the spotlight because of the $399 million damages verdict awarded to Apple Inc. for infringement of its design patents in the Apple v. Samsung case, currently before the U.S. Supreme Court. Unlike their utility counterparts that protect the way an article is used and works, design patents are unique because they cover only the ornamental appearance of an article.
According to U.S. Patent and Trademark Office projections for 2016, the number of design patent applications filed will reach an all-time high. In addition, more than 250 lawsuits asserting design patents have been filed since Jan. 1, 2016. A common defense relied upon in a patent infringement lawsuit is to challenge the validity of the asserted patent, regardless of whether it is a design patent or a utility patent. The burden to prove invalidity in a lawsuit is high: a defendant must show by clear and convincing evidence that a patent is invalid.
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