The test for determining design patent infringement has been
revised. It makes it easier for patent owners to enforce their
rights. It also impacts the strategies used to protect those
rights. In contrast to utility patents for technological
innovations, design patents protect unique product shapes. They
can provide powerful protection for design features that
differentiate innovative products from competing products. This
is especially true for many product categories—like consumer
electronics—where distinctive design is critical to commercial
success and aesthetic appeal drives purchase decisions. Design
patents confer the right to exclude competitors from exploiting
the patented design. The scope of that right is defined by the
patent figures. To determine whether a design patent is
infringed, the patented design—typically depicted by black and
white line drawings—is compared to the three-dimensional product
design that is accused of infringement. This comparison is easy
for knock-off products that copy pa