Design Patents: How Close Is Too Close? Vacillating Court Decisions Provide Little Guidance, as Shown in Apple v. Samsung

Author: Ashley Clever, Contributing Member, University of Cincinnati Law Review

When marketing a new product, a business will often need to protect both the functionality and the overall design of a product to prevent competitors from producing an identical copy. While a utility patent covers a product’s functional features—how it works and what it does, a design patent can product a product’s aesthetic features—its design and how it looks.[1] Design patents however, provide notoriously little protection and are often construed only to cover the exact design. The Federal Circuit Court of Appeals has provided very little guidance in defining what a design patent protects, with even minute changes in design or ornamentation sometimes enough to overcome a patented design.[2] The recent case of Apple v. Samsung depicts the vacillating decisions in the court’s determination of what does or does not constitute design patent infringement.[3] These fluctuating court decisions create unnecessary confusion in determining the proper scope of design patent protection, leaving inventors as well as competitors with increasing uncertainty.

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