A Rational System of Design Patent Remedies

20 Pages Posted: 1 Mar 2013 Last revised: 21 Feb 2014

Date Written: February 9, 2014


A design patent owner who wins her suit is entitled to the defendant's entire profit from the sale of the product, whether or not the design was the basis for buying the product. No other IP regime has this rule, and it makes no sense in the modern world, where a design may cover only a small component of a valuable product. The culprit is section 289 of the Patent Act, a provision added in the nineteenth century, when design patents were very different than they are today. We should abolish section 289 and bring rationality to design patent remedies.

Suggested Citation

Lemley, Mark A., A Rational System of Design Patent Remedies (February 9, 2014). Stanford Public Law Working Paper No. 2226508. Available at SSRN: https://ssrn.com/abstract=2226508 or http://dx.doi.org/10.2139/ssrn.2226508

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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