Design patents have understandably been the subject of many disparaging opinions post Apple v Samsung. Michael Hages, an intellectual property attorney with the firm Lerner, David, Littenberg, Krumholz and Mentlik, LLP, has written extensively about the uniqueness of design patents, and his advice to designers and patent agents representing them is instructive for valuation analysts.
These questions frame the nature of design and assist an analyst in determining its relative value:
- What individual features of a design would the designer be upset to find in another product?
- What about those features is unique or how are they used in a unique way in the context of your overall design?
- What are the considerations that lead to the ultimate design of those features? Do the features serve a purpose (such as causing eye movement or establishing dominance) or are they somehow related to other features of the overall design?
- What would a potential infringer likely change about the design to try and avoid a basic design patent while making a knock-off the design?