Curver v. Home Expressions Advances Design Patent Law

In today’s Curver v. Home Expressions decision, the Federal Circuit resolved several outstanding questions regarding design patents.  In particular, the Federal Circuit rejected the notion that a design can be claimed, untethered from a specific article of manufacture to which it is applied.  It also rejected the notion that the verbal portion of a design patent—the title and the claim, in particular—are irrelevant to analyzing the scope of the right.

Citing work from Prof. Sarah Burstein, one of the foremost scholars of design patents, the opinion stated that a design per se, untethered from any specific article, would create difficulties for the public in identifying the scope of what the design patent protects, as well as for the Patent Office in creating a reasonable scope within which to search for prior art.  Again citing Prof. Burstein, the court also noted that a rule that ignores the title and claim language of a design patent makes those components meaningless—surplusage that “would provide no useful information at all.”

As the Apple v. Samsung case at the Supreme Court showed, the question of what the article of manufacture actually is in any given situation is extremely important.  With this decision, the Federal Circuit moves design patent law a little closer to a rational interpretation of the scope of designs, one which moors them to particular articles.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

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