The design patent bar adjusted its strategies after the broad “article of manufacture” interpretation by the Supreme Court apportioning damages in Samsung Electronics Co. v. Apple Inc. Many practitioners responded by adopting titles specific to an entire product to justify an interpretation that the article of manufacture is the entire product, not just a component.
In September the Federal Circuit interpreted the “article of manufacture” narrowly to find non-infringement of a design patent by a similar design in Curver Luxembourg, SARL v. Home Expressions Inc.
The rules state that the title of the design must designate the particular article. A design patent is directed to an article of manufacture, which is designated in the title of the design patent. Design practitioners appropriately treat the title as part of the claim, and often pursue design patents with titles that both define an article of manufacture while remaining broad enough to avoid undue limitation of the claim scope.
“Article of manufacture” has been a popularly debated topic in design patent law recently. Case law is causing patentees to carefully consider the title of design patent applications to appropriately define the article of manufacture.
In light of these decisions, practitioners can ask designers appropriate questions prior to filing. Instead of selecting titles for a single product category, titles can be selected with a list of applicable products. Such strategies can optimize claim scope and damages, while withstanding scrutiny of the USPTO and the courts.