An Empirical Study of Design Patent Litigation

High-profile design patent litigation between Apple and Samsung has made headlines in the last few years. Not surprisingly, thereafter, design patents and related litigation have risen exponentially, and have become more important to the economy. Design patents provide legal protection for aesthetic and ornamental aspects of a manufactured product. While there is a rich and longstanding empirical literature and a crucial understanding about many facets of utility patent litigation, almost nothing is known about the design patent litigation world. This article fills that void. By building a novel and comprehensive database of all lawsuits alleging design patent infringement from 2000 to 2016, this article reports the results of a broad empirical exploration of design patent litigation, while giving an overview of the design patent litigation process. The study reveals that while utility and design patent litigation look similar at first glance, they are actually very different in several important respects. First, we find that unlike utility litigation, which almost always often involves a large company, almost half of design patent litigation involves small or medium-sized companies as both plaintiffs and defendants. Second, the amount of design patent litigation has continuously increased over the last decade, whereas utility patent infringement lawsuits sharply increased and then dipped over the same period. Third, design patent plaintiffs tend to file cases in different districts than utility patent plaintiffs. Namely, we find that design patent asserters did not participate in the flood of litigation in the Eastern District of Texas. Finally, design patent plaintiffs are almost all practicing entities who manufacture products rather than non-practicing entities (so-called “trolls”). These empirical findings have important implications for the law of design patents. While the courts treat utility and design patent litigation as similar for many purposes, including understanding the doctrine and managing the docket, the actual litigation on the ground is starkly different.