By Andrew M. Ollis & Lisa M. Mandrusiak
| July 28, 2015
Design patent litigations have frequently been in the news the past few years, particularly since Apple and Samsung began battling against each other in the Northern District of California. With the America Invents Act (AIA) also affecting the number of utility patent cases that have been filed, we wondered whether the number of design patent litigations has increased or decreased over the past few years. While the statistics we reviewed indicate no clear trend, we suggest three conclusions that might be drawn from the statistics.

The following statistics were compiled using the DocketNavigator™ analytics tool as of July 14, 2015. The district court cases were identified by searching for complaints or counterclaims of infringement or declaratory judgment, and limited to either design patents, or to all utility patent cases (i.e., excluding plant and design patents).
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These statistics suggest three conclusions. First, perhaps surprisingly, the Apple v. Samsung litigations do not appear to have significantly increased the number of design patent litigations over time. In fact, the highest number of design patent litigation suits filed came in 2010, the year before the AIA was signed into law and Apple first filed suit against Samsung in the Northern District of California.

Second, the AIA did not result in a spike in design patent litigations. While the number of design patent cases appears to have declined somewhat in recent years, the number is estimated to be higher at the end of 2015 as compared to 2012 to 2014. Unlike utility patent cases, however, there was no increase in design patent cases following implementation of the AIA. We speculate that this is because nonpracticing entities (NPEs, often referred to as patent trolls) rarely assert design patents. For utility patent infringement litigation, the AIA requirement that plaintiffs file separate suits for separate defendants apparently contributed to a sharp increase in the number of utility patent suits in 2012 and 2013.

Third, it is also not clear that the dramatic rise in the use of IPRs to challenge patents has had any effect on the number of design patent litigations. While the number of inter partes reviews (IPRs) involving design patents has increased from 1 in 2012 to 12 (including 1 post grant review (PGR)) in 2014 with 8 so far in 2015, the number of design patents involved in IPRs is still so low that it seems unlikely to have influenced design patent litigation statistics.

Whether design patent litigations will increase or decrease in the future remains to be seen. For example, if Congress or the courts were to change the law that currently allows a design patent owner to collect total infringer’s profits for an accused article rather than apportioning damages to account for the relative contribution of the design as compared to other features in the article, design patent litigation might be less attractive. On the other hand, product design is an increasingly important differentiator in a number of crowded markets, and the number of design patent litigations could very well increase. Either way, it appears that design patent litigations will continue on a trajectory that is somewhat independent of utility patent litigation filings.