American Design Patent Law: A Legal History, Ch. 6 - Design Patent Remedies

Abstract

American patent law contains an optional remedies provision for design patent infringement. The provision, which originated in 1887 in response to the Supreme Court’s decisions in a series of test cases about carpet designs (the “Carpet Cases”), permits design patent owners to elect either a fixed award ($250) or an award of the infringer’s total profits on sales of any product bearing the infringing design. The history of this provision has been invoked routinely in recent debates, but the literature contains no definitive account of that history. Here, we examine the state of patent remedies law as it existed before the 1887 Act; we consider in detail the record of the Carpet Cases; and we examine the legislative history of the 1887 Act, connecting it to its British antecedent. We present a number of new findings about the Carpet Cases and about the ensuing Congressional debate that produced the 1887 Act.

Keywords: design patent, remedies, design, 1887 Act, total profits, apportionment, damages, Dornan, Bigelow, Hartford, legal history, intellectual property