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Recent Trends in Article of Manufacture of Design Claims: A Modern Digital Popularity Contest

Protecting the Product Justin D. DeAngelis, Michael C. Sanko

Over the last 20 years, the total number of design patents issued per year in the United States has erupted. As illustrated in the graph below and further highlighted in this animated graph, in the 30 year period between the years 1971 and 2000 a total of nearly 219,000 design patents were issued by the U.S. Patent & Trademark Office (USPTO). In the 20 years since the year 2000, nearly 471,000 design patents have been issued, representing an annual issue count of more than three times that of the previous 30 year period. While the overall number of issued designs continues to increase each decade, one particular article of manufacture has seen the largest uptick in popularity among design patents issued over the last ten years: graphical user interfaces.

Graphical User Interface Designs

It was not until the mid-2000s that key advances in technology led to widespread availability and use of cellular phones, computers, and other personal electronic devices, all of which include graphical user interfaces (GUIs). This explosion in the popularity of software-embedded devices is evident in the number of software-focused design patent applications that were filed during and after this time period. Prior to 2010, the most popular design patent claims were directed to physical consumer goods such as containers, shoes, bottles, and chairs. But in the last ten years, as illustrated in the graph below, the most popular design patent claims have been directed to GUIs of a display screen (or portions thereof). To put this dramatic growth into perspective, prior to 2011, fewer than 180 U.S. design patents directed to GUIs had been issued, and since 2011 nearly 12,000 such design patents have issued.

This dramatic increase in GUI design filings did not occur in a vacuum. The landmark damages award in Apple v. Samsung was likely a major contributing factor to this significant increase in GUI design filings. In that case, Apple Inc. (“Apple”) was initially awarded $533 Million USD for infringement of three of its design patents by Samsung Electronics Co. Ltd. (“Samsung”), including a design patent directed to the GUI of Apple’s original iPhone iOS operating system. The unprecedented damages award and the placement of this high-profile design patent case as part of a larger legal war between the two smartphone giants garnered significant attention in both the business and legal communities.

In the years following the district court’s initial ruling in Apple, the number of U.S. design patents issuing annually including the phrase “graphical user interface” in the claim grew rapidly, more than doubling from 1,050 designs in 2015 to nearly 2,500 designs in 2016, as illustrated in the graph below. In 2020, the number of issued design patents with GUI claims was nearly one-and-a-half times the number of design patents with claims for shoes, nearly twice the number of design patents with claims for containers, and nearly three times the number of design patents with claims for bottles.

Claims for Portions of Designs

A tangential trend that resulted in the wake of Apple v. Samsung relates to the number of design claims for “portions” of designs that are filed with the USPTO. In its 2016 decision in Apple, the U.S. Supreme Court (SCOTUS) reversed the U.S. Court of Appeals for the Federal Circuit and held that for purposes of calculating the appropriate “total profits” damages available under 35 U.S.C. §289, an “article of manufacture” could be an individual component of a product or the entire product as sold, but remanded the issue of whether Samsung’s entire phone or individual components (including the GUI) constituted the “article of manufacture” that infringed Apple’s design patents. On remand, the district court in Apple adopted a four-factor test (first put forth by the Solicitor General and mentioned in the SCOTUS opinion) for determining whether the relevant article of manufacture is the entire infringing product as sold or only a portion of it.

A similar uptick in U.S. design patent claims directed to a “portion” of an article of manufacture is evident during and after the landmark Apple case. As illustrated in the graph below, the number of issued design patents with claims directed to a “portion” in 2016 was more than twice the number of such designs issued in 2015 and nearly four times the number of such designs issued in 2014. As SCOTUS has not yet had an opportunity to rule on the four-factor test, uncertainty remains, and thus the number of design patent claims directed to a “portion” of an article of manufacture remained steady from 2017 to 2020.

It remains to be seen whether SCOTUS will have an opportunity to weigh in on the four-factor article of manufacture test. Until then at least, U.S. design patent claims directed to “portions” of various products are expected to maintain their high popularity, given that proving infringement of these claims is simpler than for claims directed to entire product designs. Further, if current filing trends continue, “graphical user interfaces” seem like the odds-on annual favorite for the foreseeable future in the modern popularity contest of U.S. design patents.

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