Understanding the Requirements for Patent Utility, Novelty, and Non-obviousness

Clothing can be patented as design and utility patents.

In upholding the doctrine as conceived in modern patent law, the Court limited its application to instances in which the assignor’s claim of invalidity contradicts explicit or implicit representations made in assigning the patent.

While the invalidity defense is made on a claim-by-claim basis, a defendant may try rendering the entire patent invalid under the inequitable misconduct defense.

A design patent consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture.

A Provisional Patent application lets you file with the USPTO without a formal patent claim, oath or declaration, or any information disclosure statement, like prior art.

While the invalidity defense is made on a claim-by-claim basis, a defendant may try rendering the entire patent invalid under the inequitable conduct defense.

Lost profits may take the form of diverted sales, eroded prices, or increased expenses. To recover lost profits, “the burden rests on the patentee to show a reasonable probability that ‘but for’ the infringing activity, the patentee would have made the infringer’s sales.” Crystal Semiconductor Corp. v. TriTech Microelectronics Int'l, Inc., 246 F.3d 1336, 1353 (Fed. Cir. 2001) (citing Water Tech. Corp. v. Calco Ltd., 850 F.2d 660, 671 (Fed. Cir. 1988)). This necessarily requires the patentee to reconstruct a hypothetical market as it would have existed absent the infringing product.