In the United States, a design patent is infringed where someone, without the authorization of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied. 

The test for determining whether a patented design is infringed is known as the “ordinary observer” test.  To prove infringement, the patent owner must prove that the accused design is “substantially the same” as the patented design to an ordinary observer, taking into account the prior art.  This means that, where the field is crowded, the scope of protection will likely be more limited. 

As with utility patents, a design patent holder can seek damages in the amount of lost profits or a reasonable royalty.  In addition, design patents are unique in that the owner may recover the infringer’s profits made on the sale of infringing products.   

Whether you are enforcing your design patent or faced with an accusation of infringement, our litigation team can help you navigate the legal issues to achieve your strategic and business goals.