A Rational System of Design Patent Remedies
17 Stanford Technology Law Review 219 (2013)
20 Pages Posted: 1 Mar 2013 Last revised: 24 Apr 2020
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.
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