@design_law@mastodon.social
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design_law

@design_law@mastodon.social

Art major turned law professor. Teaching #Patents, #DesignLaw & #CivPro at #SuffolkLaw.

Researching & writing about #DesignPatents. Currently thinking a lot about the #ScheduleA phenomenon.

Trying to make #PatentFedi happen.

Coauthor of Patent Law: An Open-Access Casebook https://patentlawcasebook.com/

When I'm not thinking about law, I'm usually studying languages (#español, #français & #svenska), reading novels, or watching Netflix.

#tfr

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design_law, to random
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Some more assorted thoughts on :

design_law,
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  1. The "thousands of existing design patents are now at risk!" critique is not nearly as damning as some lawyers seem to think it is. That's what happens whenever the law changes. Move on.
design_law,
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  1. I'm equally unsympathetic to arguments that this decision will "hurt SMEs." You know what else hurts SMEs? Bad design patents.
design_law,
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  1. On uncertainty: Yes, this decision creates uncertainty. That's what judicial decisions do. It's the nature of our system.
design_law, to random
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Now on the summer to-do list:

design_law, to random
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Law360 coverage of , featuring some comments from me and several high-profile design practitioners:
https://www.law360.com/ip/articles/1839570?nl_pk=2e71aa9c-c8f8-43ff-9d5a-fafec61b2085

meredithlowry, to random
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Today in design patents:

D1027366 issued for one embodiment for a cereal food piece with emoji. There were many embodiments that issued this morning.

design_law,
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@meredithlowry I have so many questions.

meredithlowry, to random
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Today in design patents:

D1028321 issued for a disco ball party light.

I have so many questions (why is the plug the same size as the globe), but while I sometimes take issue with dashed lines, this is an instance where dashed lines are important.

design_law,
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@meredithlowry Maybe it's for very tiny parties?

design_law,
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@meredithlowry Does it? I'm such an introvert, it doesn't sound bad at all to me! 😂

design_law, to random
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Okay, got two panels in the works. One online, soon; one in Chicago, in the fall. Stay tuned.

design_law, (edited ) to random
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Will GM file a cert petion?

design_law, to random
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TFW a judge describes AIPLA, INTA and that weird Charles Mauro outfit as "organizations with a primary interest in the stability and clarity of the law."

😬 😬 😬

design_law,
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For those who aren't familiar: These aren't neutral groups. They are promoting their own economic interests. Which is fine. As long as you understand that.

design_law, to random
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Breaking: is out! http://cafc.uscourts.gov/opinions-orders/21-2348.OPINION.5-21-2024_2321050.pdf

Reading now.

design_law,
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"The principal question that this case presents is whether Supreme Court precedent, including KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), should cause us to rethink the long-standing Rosen Durling test used to assess nonobviousness of design patents. We answer in the affirmative and overrule the Rosen-Durling test requirements..."

!!!

design_law,
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"Where a primary reference alone does not render the claimed design obvious, secondary references may be considered."

But when/how DOES a primary reference "render the claimed design obvious"?

design_law,
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"Consistent with KSR, the motivation to combine these references need not come from the [secondary] references themselves. KSR, 550 U.S. at 418–19 (rejecting a rigidly applied TSM test). But there must be some record-supported reason (without hindsight) that an ordinary designer in the field of the article of manufacture would have modified the primary reference...."

What KIND of "record-supported reason"?

design_law,
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They cite Campbell for that last point but that was a pretty unusual case. See generally https://patentlyo.com/patent/2019/11/guest-puzzle-campbell.html

design_law,
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Anyway, time to update Chapter 12: https://patentlawcasebook.com/

design_law,
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@kathleenthelaw Lol, fair!

meredithlowry, to random
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Today in design patents:

D1028413 issued for a keepsake.

My apologies to Shakespeare, but a Magic 8 Ball by any other name will still not stop infringements of a fortune-telling sphere.

design_law,
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@meredithlowry I'd say this is anticipated but I guess the shape it a little less spherical than the Magic 8 Ball?

design_law, to random
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Another good joinder decision, this time out of SDFL.

design_law,
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This is also a good reminder that permissive joinder is a matter of discretion. Judges don't have to allow mass joinder in cases.

design_law,
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I wish there were a way to track what happens next in these cases. I'm certain the plaintiffs are not refiling against everyone in separate cases. But I can't help but wonder if there are any style shenanigans going on.

design_law,
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@rticks Not Musk this time!

https://storage.courtlistener.com/recap/gov.uscourts.flsd.659003/gov.uscourts.flsd.659003.24.0.pdf

design_law,
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@rticks It's basically a shakedown scheme. Some of the targets may actually be infringers. But not necessarily. And even when/if they are, these plaintiffs appear to be demanding more (sometimes, much more) than the amount of damages they could recover in regular litigation.

For more details, see Part II(B) here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909

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