Attys Looking to Justices to Resolve Design Patent ‘Mess,’ Law360

Partner John Hemmer spoke with Law360 about calls for the US Supreme Court to clarify design patent infringement standards after the full US Court of Appeals for the Federal Circuit declined to reconsider its current approach.

John said design patent infringement questions should generally be left to juries, with judges reserving findings that designs are “plainly dissimilar” for more extreme cases.

“If the standard is substantial similarity to an ordinary observer, who better to make that decision than someone on a jury?” he said.

John added that Supreme Court guidance on the issue would be helpful as courts determine when design patent infringement questions should be decided by a jury.

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