Design Patents: A Cause for Concern

Florida has always attracted entrepreneurs and creative thinkers. Florida High Tech Corridor research universities, including the Universities of Florida, Central Florida and South Florida, ranked within the top 30 universities world-wide in U.S. patents granted last year.

Businesses often rely on intellectual property to protect their new ideas and products, and the U.S. patent system has been under close review the past several years in the courts and Congress. Yet there are certain elements of patent reform, namely design patents, which are in dire need of change but are not being discussed before Congress, but instead are being dueled in court. Design patents need a closer look before they’re abused to the detriment of American innovators, forcing business operations to close because of unreasonable settlements from aggressive patent entities.

Legislation may not be needed if the courts take a more refined approach on design patent remedies and interpret the statute such that form is not trumping function. The current interpretation assumes the design is relevant, but requires no proof of such and does not account for the situation in which function actually trumps form. Innovators want to focus on creating solutions to business and societal challenges using the latest technology, not waste energy on contingency plans in case of a nonsensical design patent lawsuit. As our tech space grows and entrepreneurs continue bringing new ideas here, Florida needs to pay close attention to this issue and be prepared to address it.

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