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Morgan Smith

Design Patent Litigation: Where Aesthetics and Law Intersect

apsa-125x125This post is co-written by Michael Kelleher and Morgan Smith

At Cogent Legal, we create presentations for a wide variety of cases. In each case, design plays into everything we do, from color choice to placement of images and text. These factors subtly influence a jury or judge and their perceptions of the evidence and argument. Well-done visual aids for trial use all the elements of good design to make a strong impact on the viewer, and can be crucial to the outcome of a dispute.

In a few types of cases (e.g., trademark, copyright and design patent), design itself can be a core factual issue at the heart of the dispute. In such cases, visual illustrations of differences and similarities may be more than just helpful, they may be a required element of proof. Without graphics, imagine trying to explain to a jury the differences between the iPad and a rival tablet. You simply could not do it.

Design patents have received much attention of late due to the Apple v. Samsung litigation. We find design patent litigation fascinating not only because graphics are at the heart, but also because of the role that design aesthetic plays. Out go the objective clear points of law defining the difference between the prevailing and losing parties, and in come the subjective evaluations of design, form and visual impact of a product. During the trial, the attorneys might start sounding more like art school teachers than lawyers.

A recent article by Christopher Carani in ManagingIP, reposted by Dennis Crouch on his blog, provides a great overview of design patent litigation and discusses the “inherent subjective component” in such cases. Carani writes, “One of the few guiding lights to aid practitioners through these murky waters is a firm grasp of the patented and accused designs implicated in, and the holdings of, past decisions. It is only through this type of empirical study and ocular inspection that one can get a feel for the central question of ‘how close is too close’ for design patent infringement.”

Carani’s article emphasizes that understanding past patent design cases and their visual examples helps patent attorneys evaluate the risk or likelihood of success for their clients. For example, Carani relates how the modern jurisprudence on design litigation developed from the 1871 Supreme Court case in Gorham Co v White, where the novel claim that the defendant’s design of a spoon handle was too close to plaintiff prevailed.


The Supreme Court held that infringement may be found if “in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same.”

However, as Carani writes, the 800-pound gorilla of design patent litigation is the Apple v. Samsung case, where he provides a graphic depiction of the prior art, the patented designs and the defendant’s product.


In the Apple case, defendant pointed out all the differences between the patent and their product, including placement of buttons, rounded edges, thickness of design and many other differences. However, the jury found those were differences without distinction when the “look and feel” of the products were so clearly similar.

We commend Carani’s article to you—it has many more excellent examples of the role of design comparisons in design patent litigation.

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