All the designpatent owner has to show in order to win is that the patenteddesign and the accused design are substantially the same in overall appearance, and that the accused design has appropriated the novel features of the patenteddesign.
As a result of it having been examined, a designpatent is presumed valid by law, and the alleged infringer has the burden of proving by clear and convincing evidence that the designpatent is not novel, is not ornamental, or would have been obvious to a designer of ordinary skill.
Designpatents make for good court cases, since no technical expertise is necessary for a judge to decide whether the infringing product is substantially the same in overall appearance as the patenteddesign.
Since a design is manifested in appearance, the subject matter of a designpatent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.
I have, however, seen designpatents take on great strength when they are acquired in bulk, for example a significant number of designpatents cover essentially identical variations of a single thing.
The term of the designpatent is presently 14 years, and once the designpatent has issued there are no other financial obligations necessary to keep the designpatent pending for the full 14 year term.
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