Data: Counsel Shifting Design Patent Strategies to Cull Fakes

The U.S. District Court for the Northern District of Illinois saw a 271% increase in design patent litigation cases in 2020. This increase is indicative of how companies are developing more innovative strategies to fight back against counterfeiters, including relying on the court's willingness to grant anonymity to plaintiffs and ex parte seizures of accused products. When counterfeiters cannot blatantly use a brand’s logo on their products, they will often infringe on the product’s design patents instead. Managing Intellectual Property interviewed Finnegan partner Elizabeth Ferrill for her insight into some of these strategies, as well as predictions for 2021 in the design patent space.

Elizabeth said it is common in counterfeiting litigation for plaintiffs to attach exhibits with lists of websites, sue several defendants they do not have much data on, and look for default judgments when the defendants don’t appear in court. This is an approach that attorneys are now starting to take in design patent litigation cases as well.

Elizabeth also commented on the Central District of California and why it has traditionally been a popular jurisdiction for design patent cases. With California having a large port in Los Angeles where many goods come in, Elizabeth said it is a good place to get jurisdiction over items that are imported into the United States. It was also one of the busiest courts for trademark litigations in 2020.

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