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Invalidating a design patent

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However, obtaining the benefit of an earlier-filed utility application poses a special challenge in showing that the utility application provides adequate support—that is, showing the disclosure of the earlier-filed utility application demonstrates that the inventor was in possession of the design claimed in the later-filed design application.This requirement was reiterated by the PTAB in its first IPR decision regarding a design patent, a decision that has now been affirmed by the Federal Circuit (cert denied).More specifically, the ‘677 design patent was filed as a division of Application No.

However, design patents hold out the prospect of another remedy, one utility patent holders can only dream of: a recovery of the total profits made by the infringer.Namely, the patent owner pointed to the textual disclosure that aspects of the spout could have oval shapes as providing support for the oval shape shown in FIG. The Board held that this excerpt did not identify the specific shape of the claimed spout or otherwise reasonably convey that the inventor had possession of the claimed design.The PTAB did not rule out entirely that a utility application could provide adequate support for a design claim. Figures from the ’488 patent and images of these three references are reproduced below. The district court held, on summary judgment, that these two patents were invalid as obvious over three prior art dog jerseys: the Eagles jersey, the V2 jersey, and the Sporty K9 jersey.For patent owners looking to beat these odds, one way to overcome the prior art at issue would be to prove a valid priority claim to secure an earlier effective filing date.For a design patent, the priority claim could be to an earlier-filed, co-pending design application, or even a utility application.Just like having utility patent claims of varying scope is advantageous, having both a design patent and a utility patent may be advantageous because a prior art reference that invalidates a utility patent might not invalidate the design patent and vice versa.Similarly, a noninfringement defense that may succeed against the utility patent might not succeed against the design patent and vice versa.The patent examiner in the reexamination explained: The patent owner is advised that the design in this patent is not described in the originally filed disclosure of earlier applications, 29/282834 or 29/270999. Without the ability to claim priority back to January 5, 2007, two other Apple design patents – U. Design Patent D602,014 (filed August 31, 2007) and U. Design patent D618,204 (filed June 27, 2007) – were prior art. 102(e), and were used to support one of three separate obviousness rejections.The design in this patent is different from that of the earlier applications in that the new claim includes a front surface entirely covered with a translucent black surface without color contrast and excludes the surface within the round home button while including the entire capsule-shaped speaker opening. 112, first paragraph, needed to claim benefit under 35 U. These two references qualify as prior art as of the date they were filed under pre-AIA 35 U. The ‘204 design patent was also used to support a pre-AIA 102(e) rejection based on the fact that the appearance of the planar front surface of the ‘204 design patent is substantially the same as that of the patented design.