berk PT answer 2 - Law 275.3 Intro to IP Prof P Schwartz...

Info iconThis preview shows pages 1–2. Sign up to view the full content.

View Full Document Right Arrow Icon
1) Question 1 Happy Toys v. Original Products There are several issues that will arise in this appeal. Design Patent Infringement In order for Original Products (OP) to succeed in their claim of design patent infringement, they must first show that they hold a valid patent. Summary judgment was granted in favor of OP against Happy Toy's (HT) claim of patent invalidity. Patent Invalidity - Design Patents Design patents protect the aesthetic appearance of a product rather than its functional features. A design is patentable if it meets the requirements of novelty, originality, and nonobviousness, is ornamental and is not dictated by functional considerations. Novelty A design is novel if the 'ordinary observer' viewing the new design as a whole, would consider it to be different from, rather than a modification of an already existing design. The design of the 'Spinner' is a football with a narrow tail shaft containing three fins protruding from its rear. The facts do not indicate if such a design had been anticipated in the prior art, and thus, presumably, an ordinary observer would consider it different from an already existing design since no such design previously existed. Further, the fact that a design patent was issued in the first place seems to indicate that this design was not anticipated in the prior art because an issued patent comes with a presumption of validity. HT might argue that the design of the football is similar to its classic spinning top, but this argument will likely fail since the aesthetics of the football, unlike its function, do not resemble a top. Thus, OP will likely be able to establish that their design is novel. Nonobviousness Nonobviousness requires the 'exercise of the inventive or originative faculty.' It is measured in terms of a designer of ordinary capability who designs articles of the type presented in the patent application. HT will argue that the Spinner is something that any second grader might have constructed, implying that the design was an obvious one. OP will counter that such a design required inventiveness since it is not intuitive to put a three finned tail shaft on a football. Otherwise, other designers of ordinary capability might have done so and reaped great commercial success, as evidenced by the success of the Spinner toy. Thus, OP will likely be able to establish that their design is nonobvious Ornamentality A patentable design must be ornamental, creating a more pleasing appearance. To satisfy the requirement of ornamentality, a design must be the product of aesthetic skill and artistic conception. OP will contend that they designed the Spinner so as to make it appear as if a tail shaft was protruding from the inside of the football, which requires some artistic skills since they must create somewhat of a visual illusion using their abilities. Further, the added tail shaft to the back end of the football gives the product more of an ornate and dynamic feel since it looks so much less like an ordinary football and more like a ball that is capable of jet propulsion. Accordingly, OP has a strong argument that its design meets the ornamentality
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Image of page 2
This is the end of the preview. Sign up to access the rest of the document.

This note was uploaded on 04/05/2010 for the course LAW LAW6571 taught by Professor Abbott during the Spring '10 term at Florida State College.

Page1 / 8

berk PT answer 2 - Law 275.3 Intro to IP Prof P Schwartz...

This preview shows document pages 1 - 2. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online