A Design-Around for the United States Design Patent System: What Can the United States Learn from the United Kingdom and Canada in the Aftermath of Samsung v. Apple?

By Katherine McNutt

The recent Samsung v. Apple design patent litigation has generated substantial discussion of the United States design patent system’s weaknesses, particularly with respect to technologically complex products. In late 2016, the United States Supreme Court acknowledged shortcomings of the United States design patent system as applied to multicomponent products, but did not provide a concrete test to address these issues. As the Supreme Court’s decision leaves the lower courts without clear guidance to fashion a test, they would benefit from examining industrial design systems abroad for direction. Industrial design systems in other countries, including the United Kingdom and Canada, have not faced negative publicity comparable to that faced by the United States design patent system. Lower courts thus might benefit from a comparative analysis of these nations’ systems for design protection. Although the three design protection systems share many similarities, some significant differences exist in how courts determine industrial design infringement and damages awards. To mend its own design patent system, the United States should grant judges discretion to determine proper damages awards following a fact-specific inquiry considering the value that the appropriated design contributes to the infringing product.

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