Design patents

Patents covering the ornamental or aesthetic appearance of a functional article — as distinct from utility patents, which protect functional aspects — providing 15 years of protection from grant and subject to a distinct infringement standard based on the ordinary observer test. Design patents gained prominence in litigation finance following Apple Inc. v. Samsung Electronics, where the court applied the entire article damages rule to award Samsung's entire smartphone profits for design patent infringement of certain interface elements. This total-profits remedy under 35 U.S.C. § 289 creates potentially outsized damages relative to a design's functional contribution, making funded design patent campaigns highly sensitive to how courts define the relevant article of manufacture for damages purposes. Funders evaluating design patent cases must assess whether the design drives consumer purchasing decisions and what the defendant's total profits on the accused product line represent.

Because Apple v. Samsung established that total-profits disgorgement under 35 U.S.C. § 289 can apply to an entire product's profits rather than just the value attributable to the infringed design, funders underwriting design patent campaigns focus heavily on how courts will define the relevant 'article of manufacture' for damages purposes — a component-level article of manufacture produces a dramatically smaller recovery than a whole-product one. This makes design patent underwriting unusually sensitive to a single doctrinal question relative to utility patent cases, where damages theories are typically more incremental.