SAN JOSE, Calif. – The Apple vs. Samsung case sent out two calls to action big as billboards along San Jose’s Highway 101: File more design patents. Register more trade dresses.
These are the relatively new and still under-used parts of the U.S. Patent System. I’ll tell you why they are well worth more attention.
1. They are relatively easy to file. Design patents don’t have long, complex claims. Just a few drawings. Fewer experts and lawyers to wait for and pay.
2. They are broad. A design patent, for example, covers “an overall impression” of the look and feel of a product, according to many experts in the Apple vs. Samsung case. That’s very subjective and thus broad and subject to how well your lawyers and experts can argue in court.
3. It’s easy to understand by a jury of your peers. Anybody can understand what an iPhone or iPad looks like and that the look is kinda distinctive. Not everybody can stay awake when someone argues for a utility patent on the alternate e-bit in the 3G cellular standard—something about which the Samsung’s attorneys had to educate the jury. They won no infringement money for their expensive efforts.
4. They make money. A significant fraction of Apple’s $1.05 billion damages award was for design patents and trade dresses. These things pay.
5. They protect IP you didn’t know you even had. Apple showed its iPhone boxes and packaging as part of its trade dress. Who would have thought these little out-of-the-box-experience details could be intellectual property you could monetize? Go figure, and sharpen your pencil.
6. Everybody else will do it. This is a big lesson from the Apple vs. Samsung case. Other people will get it, if not today someday soon. Don’t be left out of the next big IP race.
7. There’s a protracted sluggish recovery going on. Too many people have time on their hands and are hungry for new opportunities. File a design patent. Register a trade dress.
Go ahead, scoff. Tell me how stupid it is to have a patent on a black rectangle with rounded corners.
While you are busy laughing, I am busy filing a design patent.
See you in court!