What are the challenges in establishing commercial success for design patents?
Establishing commercial success for design patents presents unique challenges. The Manual of Patent Examining Procedure (MPEP) 716.03(b) specifically addresses this issue:
“Establishing a nexus between commercial success and the claimed invention is especially difficult in design cases. Evidence of commercial success must be clearly attributable to the design to be of probative value, and not to brand name recognition, improved performance, or some other factor.”
The MPEP cites a relevant case:
“Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 221 USPQ 97 (Fed. Cir. 1984) (showing of commercial success was not accompanied by evidence attributing commercial success of Litton microwave oven to the design thereof).”
To overcome these challenges, applicants for design patents must provide clear evidence that the commercial success is directly attributable to the claimed design features, rather than other factors such as brand recognition or functional improvements.
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