This year, we will mark the 10-year anniversary of the first jury verdict in the landmark IP litigation between Apple and Samsung, which resulted in the jury awarding more than $1B to Apple. More than $500M of that award was attributed to a finding that Samsung infringed three of Apple’s design patents for the iPhone® smartphone. Since that time, interest in design patent protection has continued to grow by all measures. As interest has grown, so have the number of filings for design rights globally and so have developments in the law both through court decisions and legislation.

Once considered the intellectual property option you were left with if you were unable to obtain utility patent protection, more and more companies are seeking design patent protection in addition to, and in some cases in lieu of, utility patents. And why not? They can be less costly and time consuming to obtain and to litigate than utility patents. They can also be easier for a court, and in particular, a jury to understand. If infringement is found, the patent holder can be awarded the total profit made by the infringer from the sale of the infringing article — a remedy not available for utility patent infringement. It is no surprise then that design patents are being used more frequently to protect designs for just about anything, from breakfast pastry to running shoes.

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