A Rational System of Design Patent Remedies

Stanford Public Law Working Paper No. 2226508

17 Stanford Technology Law Review 219 (2013)

20 Pages Posted: 1 Mar 2013 Last revised: 24 Apr 2020

Date Written: February 9, 2014

Abstract

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). 17 Stanford Technology Law Review 219 (2013). 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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