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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.
Not surprisingly, district courts have encountered some difficulty when performing a Markman claim construction on a design patent claim. The primary difficulty has been in determining whether the interpretation of the claim should result in a detailed description in words of the patent drawings or just a simple reference to the drawings as depicting the scope of the design patent claim. Requiring a detailed description of the design appears to contradict the fundamental reason for granting a patent for a design ' that the design itself is worthy of protection and will be best depicted in graphic form, as opposed to words. Specifically, each design patent application may only include a single claim, M.P.E.P. '1503.03, which must refer to the ornamental design for the article as shown in the drawings. 37 C.F.R. 1.153 (emphasis added). Furthermore, an applicant is given an opportunity to include a written description of the design if he or she so desires, but a description is not required. M.P.E.P. '1503.01.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.