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    Tuesday, September 30, 2008

    Design Patents reinvigorated

    Design patent holders will be thrilled withe new decision by the Federal Circuit in Egyptian Goddess, Inc. v. Swisa, Inc., _ F.3d _ (Fed. Cir. 2008), making enforcement of patent protection for design patent owners less onerous. Design patents protect the ornamental features of functional articles. Previous to the Egyptian Goddess decision, the test for infringement was (1) substantial similarity from the perspective of an ordinary observer, and (2) the accused device contains the same points of novelty as the ptented design. The second test required claim construction in words of the graphic ornamental features and was used for appeals, hearings, and other purposes in defense of a design patent infringement suit. The Federal Circuit in Egyptian Goddess did away with the point of novelty test, thus easing the burden on patent holders in proving infringement. Since design patents are often easier to obtain, and less expensive, than utility patents, this is a significant boost to the small business ip entrepreneur.

    Time for a New Court

    As I've mentioned numerous times, patent litigation is expensive for all concerned. The average pricess for patent litigation in attorneys fees is above $1 Million Dollars. For the overwhelming majority of patent owners, that price tag is simply too steep. Conversely, if you are unfortunate enought to be sued, the price tag is the same or higher, simply too steep. Sometimes the pre-suit negotiation or pre-Answer negotation, of a suit that has been filed, is a game of chicken where each side inches toward destruction, waiting for the other side to blink.

    But protecting IP rights, and defending against claims of infringement, should not be a game solely for the rich. A new type of court is needed that significantly reduces the cost of enforcement. Some have called for a specialty U.S. Patent Court, somewhat like the U.S. Tax Court or the U.S. Court of Federal Claims, for handling all suits for patent infringement. But that doesn't resolve issues involving the 7th Amendment where a right to jury is guaranteed. Perhaps what is needed is a Federal small claims IP court, where people can plead patent and IP cases under a certain threshhold and get accelerated treatment, reduced discovery, and other procedure saving features. Some simple ways to reduce costs in IP litigation are: (1) mandatory, nonwaivable initial disclosures, and (2) combining summary judgment with Markman hearings or, where thare are no summary judgment motions, combining trial with Markman hearings.

    Whatever the solution, the small business entrepreneur needs to be able to protect its intellectual property, and needs to be able to defend itseld against claims of infringement, neither of which are effectively being provided under the current IP enforcement framework.