AMICUS BRIEFS FILED IN COLUMBIA V. SEIRUS PETITION FOR REHEARING

On November 13, 2019, the U.S. Court of Appeals for the Federal Circuit handed down its opinion in Columbia v. Seirus that involved a design patent on a 3-D pattern of a heat reflective material.  The appeal was focused  on the identification of the “article of  manufacture” of the accused design upon which total profit damages would be assessed for the successful design patentee Columbia.

The Federal Circuit dodged the issue of damages, and reversed the lower court’s summary judgment holding.  Among other things, the Court found that the lower court had failed to take into account the infringer’s placement of its logo on the accused design, saying that the jury should have been able to take that into account in determining whether the accused design was substantially the same visually as the patented design.  Such a finding, if undisturbed, would be a disaster for design patent holders, as explained in my previous post.

Columbia has petitioned for rehearing based in part on the court’s logo finding.  A number of amicus curiae briefs were filed in support of the Court either granting rehearing on the logo issue, or at least clarifying that portion of its opinion. 

One such amicus brief was filed by a Group of Interested Practitioners, seven design patent lawyers of whom I was one. Another amicus brief was filed in the name of the Industrial Designers Society of America (IDSA), and a third in the name of Bison Designs and Golight, two companies actively engaged in design patent procurement and enforcement.

Such petitions for rehearing unfortunately have only a small chance of being granted, so clarification/correction of this issue may well need to wait for another case.  I will keep you updated on the progress of this appeal as it unfolds before the Federal Circuit.