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Journal of Technology Law & Policy

Document Type

Note

Abstract

If the Lawman Armor Corp v. Winner International, LLC & Winner Holding, LLC decision is not overturned, it will greatly weaken design patent protection. In March and May of 2006, the Court of Appeals for the Federal Circuit (CAFC) handed down two decisions that sent shockwaves through the design patent community. These decisions are Lawman Armor I and II, in which the CAFC held that the overall design of an object is not considered a point of novelty in determining if a design patent has been infringed. The CAFC upheld the U.S. District Court for the Eastern District of Pennsylvania decision, the Lawman Armor patent D357621 does not contain a point of novelty. At the CAFC, Lawman argued for an interpretation that a combination of design features known in the prior art can serve as a point of novelty. The CAFC was unconvinced and determined such an interpretation would turn design patent infringement on its head.

This opinion led intellectual property practitioners and members of the design industry to submit briefs to petition the CAFC for a rehearing or rehearing en banc. These professionals argued that not only does the CAFC decision fly in the face of current precedent, but the decision creates a disparity in the novelty required to receive a design patent and the novelty required to prove design patent infringement. Even judges on the CAFC disagreed with their colleagues’ interpretation and strongly urge DCA to revisit the Lawman Armor decision.

The author will examine what a design patent is, the standards and rules governing the grant of a design patent, and the court-created tests for design patent infringement. Next, the author will examine how the Lawman Armor opinion affects design patent infringement analysis. The author will then compare the Lawman Armor decision with prior CAFC design patent cases. Lastly, the author will propose a new rule for determining the point of novelty, utilizing the standards in design patent prosecution, case law, and problems Lawman Armor made apparent.

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