THE FINAL IMPRESSION COUNTS – Seeking Common Ground in Design Patent Infringement
Dana Beldiman*and Paolo Beconcini
The visual appearance of products has become an asset of considerable economic value. Litigation surrounding it is increasingly common and has focused IP law on certain tensions that relate to the visual nature of IP assets.
One such area is design patent infringement. Policy mandates that comparison of two similar designs for purposes of evaluating infringement be performed by a notional purchaser, based on the overall impression of a design as whole. However, in performing the analysis courts are tempted to fall into the trap of an element-by-element evaluation and comparison, concluding with a detailed verbal description of the design’s features. This fact risks distorting the analysis, results in low outcome predictability in design patent infringement litigation and unwarranted variations among jurisdictions.
This article considers the approaches to the similarity analysis in design patent infringement adopted by the laws of China, the US and the EU. Informed by this examination, we seek to distill commonly acceptable principles, aiming for greater consistency in outcomes across jurisdictions.
**Prof. Dr. Dana Beldiman, Bucerius Law School, Hamburg, Germany; UC Hastings, San Francisco, USA.; Dr. Paolo Beconcini, counsel CBM LLP, Beijing, China.
- design patent,
- overall impression,
- ordinary observer,
- informed user,
- community design,
- egyptian goddess,
Available at: http://works.bepress.com/dana_beldiman/4/