David Caine Comments on Federal Circuit Design Patent Dissent in Law360

David A. Caine, Arnold & Porter partner in the Intellectual Property practice, was quoted in the Law360 article, “Design Patent Dissent Highlights Frustration Over Subjectivity,” where he discussed Chief Judge Kimberly Moore’s dissent in a recent Federal Circuit design patent decision, emphasizing that courts should focus on overall visual impression rather than isolated differences.

“The question is, what happens when you have small variations in designs? How do you weigh those small variations as compared to looking at the overall similarity?” Caine said, noting that Judge Moore’s opinion reinforces that the “overall impression” of a design must remain the primary inquiry.

Caine cautioned that focusing too heavily on counting distinctions can cause courts to “lose the forest for the trees,” and pointed to principles of trademark law that weigh similarities more heavily than differences, suggesting parallels in how courts may approach substantial design patent similarity.

“There's case law in the trademark space that stands for the proposition that similarities are to be weighed more heavily than differences," he said. "There's more to it than that, but…when you're looking at the substantial similarity between, for example, two marks and the overall design of the mark, how do you view and account for, say, differences in individual elements?"

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