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

American Design Patent Law: A Legal History, Ch. 6 - Design Patent Remedies (Cambridge Univ. Press Forthcoming)

Indiana Legal Studies Research Paper No. 343

62 Pages Posted: 28 May 2016 Last revised: 7 Jun 2016

Jason J. Du Mont

Stanford Law School

Mark D. Janis

Indiana University Maurer School of Law

Date Written: May 26, 2016

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

Suggested Citation

Du Mont, Jason J. and Janis, Mark D., American Design Patent Law: A Legal History, Ch. 6 - Design Patent Remedies (May 26, 2016). American Design Patent Law: A Legal History, Ch. 6 - Design Patent Remedies (Cambridge Univ. Press Forthcoming); Indiana Legal Studies Research Paper No. 343. Available at SSRN: https://ssrn.com/abstract=2784746

Jason J. Du Mont (Contact Author)

Stanford Law School ( email )

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

HOME PAGE: http://jasondumont.com

Mark David Janis

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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