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The Court's Proper Role in Construing the Claim of a Design Patent: Should a Picture Be Worth a Thousand Words?
The Federal Circuit has held that, as with utility patents, design patents must be construed by the court. See Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995). This apparently simple mandate has proven difficult in practice. The single claim in a design patent typically consists only of a series of drawings depicting the patented design. The basic premise of Markman ' that a judge's experience with the interpretation of documents will likely allow him or her to produce a more accurate and consistent claim interpretation ' does not intuitively extend to design patents, nor is it apparent that a judge's interpretation of the drawings will be any more proper and uniform than a jury's interpretation.
Moreover, the design patent infringement tests performed by a jury ' the “ordinary observer” and “point of novelty” tests ' require the jury to compare the drawings of the patented design to the accused device and only find infringement where the accused design appropriates the novel features of the design patent. Neither of these tests requires the jury to have a description in words of the drawings for comparison with the accused design.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Protecting Innovation in the Cyber World from Patent Trolls
With trillions of dollars to keep watch over, the last thing we need is the distraction of costly litigation brought on by patent assertion entities (PAEs or "patent trolls"), companies that don't make any products but instead seek royalties by asserting their patents against those who do make products.