A Rational System of Design Patent Remedies

Abstract

A design patent owner who wins her suit is entitled to the defendant’s entire profit from the sale of the product, whether or not the design was the basis for buying the product. No other IP regime has this rule, and it makes no sense in the modern world, where a design may cover only a small component of a valuable product. The culprit is § 289 of the Patent Act, a provision added in the nineteenth century, when design patents were very different than they are today. We should abolish § 289 and bring rationality to design patent remedies.

Details

Publisher:
Stanford University Stanford, California
Citation(s):
  • Mark A. Lemley, A Rational System of Design Patent Remedies, 17 Stanford Technology Law Review 219 (2013).
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