Design Patent Trends at the ITC – Mid-Year Update

Summer Associate Leen Mosa also contributed to this article.

Ten Section 337 Investigations were terminated in the first half of 2024. Of those ten investigations, two involved design patents. Although those investigations ended with the Commission issuing no remedial orders (including two closely watched investigations that ultimately found no Section 337 violation), Section 337 investigations involving design patents continue to fare better at obtaining remedial orders than Section 337 investigations involving just utility patents or other unfair acts, similar to the past three years.

From 2015 through June 2024, 197 Section 337 investigations concluded, proceeding to Final Determinations. Of those, the Commission found a violation and issued remedial orders in 115 cases. To date, the Commission has issued General Exclusion Orders (GEOs) or Cease and Desist Orders (CDOs) in 59% of the investigations involving design patents that went to Final Determination. In comparison, the Commission has issued GEOs and CDOs in 13% and 40%, respectively, of investigations involving utility patents. The Commission’s rate of issuing Limited Exclusion Orders (LEOs) in investigations involving design patents is 36%—slightly lower than its 43% rate of issuing LEOs in investigations involving utility patents or unfair acts. Overall, however, from 2015 through June 2024, the Commission has found a Section 337 violation in 82% of the investigations reaching Final Determination and asserting a design patent, compared to only 55% of investigations asserting just utility patents or unfair acts.

We will continue to monitor how Section 337 Investigations asserting design patents fare during the remainder of 2024, particularly in view of the Federal Circuit overruling more than 40 years of precedent defining the standard for design patent obviousness.