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May 23, 2016Published Article

Hague Agreement, despite some kinks, may be best of U.S. design patents

Chicago Daily Law Bulletin

Currently, design patents are at the forefront of U.S. intellectual property law. In granting certiorari in Samsung Electronics Co. Ltd. v. Apple Inc., the U.S. Supreme Court will interpret the design patent statute for the first time in more than a century.

The court will consider the question of whether Apple is entitled to Samsung’s “total profits” on the sale of products that infringe Apple’s design patents. This is likely to have a considerable impact on monetary recoveries in infringement cases.

The outcome of this case may also energize a recent major development in U.S. design patent law that has to date received relatively little attention: the U.S. becoming a contracting party to the Hague Agreement, which allows U.S. applicants to obtain international design applications.

The U.S. Patent and Trademark Office published its final rule on changes to the Hague Agreement on April 2, 2015, in the Federal Register and the Hague Agreement took effect with respect to the U.S. on May 13, 2015. This agreement allows an applicant to file a single international design application that will enable design protection in all countries that are members of the agreement.

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