Patent Law

I just received my print Summer 2009 issue of the ABA Intellectual Property Litigation newsletter.  The following is excerpted from the above-titled article by Mark Gallagher and Kelly Caputo of Duff & Phelps:

So, what would you like in your hand now?a utility patent or a design patent? The answer may surprise you. This article compares and contrasts the calculation of damages for utility patents and design patents.

As one court noted, ?[a]lthough the design patent is not as popularly known as its counterparts, the utility patent and the copyright, design patents perform a distinct function in the federal scheme of legal protection for creative works.? Indeed, damages resulting from infringement of a design patent are recoverable under § 284 or under § 289. Therefore, having a design patent in hand opens alternative, and possibly more advantageous, avenues to explore when calculating damages.

...a court can consider at least three theories when determining the appropriate damages award in connection with design patent infringement: (1) the infringer?s profits pursuant to § 284; (2) lost profits pursuant to § 289; and (3) a combination of lost profits and reasonable royalty pursuant to § 284 and § 289.

Read the full article here (ABA Section of Litigation membership required).