Patent Infringement in Design Patents

Patent Infringement in Design Patents

October 16, 2022
Walker Weitzel
Patent Attorney , Patent Law , Patent Learning

Patent Infringement

It can be challenging to avoid the potential risk of patent infringement in design patent applications. Companies usually fashion their new product lines to a similar likeness to those of their competitors. But they must differentiate their product design from their competitors, or they can be held liable for patent infringement. 

What are Design Patents?

Design patents are based on the visual features of the invention and are limited to its appearance, not functionality. Some examples of a design invention patent are packaging, automobiles and jewelry designs, computer icons, etc. Whereas, utility patents include new ideas, inventions, and machine processes and take into account the function and usefulness of the product. 

Design patent infringement claims are only limited to the look or the visual of the product and don’t apply to its function or use. 

What Factors Should Companies Consider Before Manufacturing a New Product?

Though it’s impossible to investigate the millions of design and utility patents before developing, manufacturing, and selling a new product, due diligence and research in critical to protect yourself from patent infringement claims. Therefore, look into related patented products before developing or manufacturing a patent, examining the similarities in both looks and function for design and utility patents. This way any necessary changes can be made at the development stage to alter the product before it is finalized. For example, shape, color, and features. 

You can also conduct an assignee search for utility and design patent applications at the patent office website. This gives you an idea of the pending patent applications of your competitors. Even though the assignee search may not yield results for all the patent applications, it still provides adequate information to get yourself some measure of patent protection for your design invention patent.  

The following case details show the details of patent infringement for a design patent filed by Crocs Inc against several other companies. 

Crocs, Inc. v. International Trade Commission

Crocs filed for patent infringement for the design of their footwear for patent number 789. The court found that the design of the infringing companies was similar to that of Croc’s patent and provided judgment of infringement against some of the companies. 

The ordinary observer test is used to determine patent infringement in patent design cases. It involves comparing the accused and the patented by an ordinary observer to identify the similarities between the two designs. 

The Court conducted a side-by-side comparison of the drawings of the designs of the accused companies and Croc’s 789 patent and found them almost identical. They pointed out that the patented design created a central point where all the design lines met and the copied footwear incorporated the same design element in their product. The Court held that even though there were some differences in both designs, the overall effects of both products were deceivingly similar and it would be difficult for an ordinary observer to pinpoint the differences between the two designs. 


The ordinary observer test is the deciding factor to determine infringement in design patent claims. It is important to understand that the Courts can consider both the design similarities and the overall look or effect of the patent design to come to a decision. Minor differences in design are not enough to rule out patent infringement claims. Therefore, examine and analyze each aspect of your invention design before selling, manufacturing, or making it public to avoid legal consequences. 

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