Prosecuting and Enforcing a Design Patent: A Practitioner's Guide to Drawings, Claim Scope, Obviousness, and Total-Profits Damages
By Casey Scott McKay ·
This guide runs a design patent from the moment an appearance is selected to the moment it is enforced, and it is written for a practitioner who has done utility work and needs the differences. It starts with harvesting and the disclosure-date diary, because there are no design provisionals and foreign rights end the day the design is shown. It specifies drawing preparation and the broken-line decisions that constitute claim scope, then the continuation family that is the actual protection strategy. It works prosecution after LKQ - the analogous-art and motivation arguments that replaced the rigid framework, and the objective-indicia declaration that now matters. It covers the ordinary observer comparison, the crowded-field defense, functionality evidence drawn from the patentee's own files, and the article-of-manufacture fight that decides total-profits damages. It closes with enforcement posture and the annual portfolio review.
IP and Technology > Patent Counseling Transactions | Guide | Published 10 January 2025 - Updated 3 April 2025 | Casey Scott McKay - marksy.us
Summary. This guide runs a design patent from the moment an appearance is selected to the moment it is enforced, and it is written for a practitioner who has done utility work and needs the differences. It starts with harvesting and the disclosure-date diary, because there are no design provisionals and foreign rights end the day the design is shown. It specifies drawing preparation and the broken-line decisions that constitute claim scope, then the continuation family that is the actual protection strategy. It works prosecution after LKQ — the analogous-art and motivation arguments that replaced the rigid framework, and the objective-indicia declaration that now matters. It covers the ordinary observer comparison, the crowded-field defense, functionality evidence drawn from the patentee's own files, and the article-of-manufacture fight that decides total-profits damages. It closes with enforcement posture and the annual portfolio review.
Keywords: design harvesting · disclosure date diary · drawing preparation · broken line strategy · continuation family · single claim practice · short description drafting · analogous art argument · motivation to modify · objective indicia declaration · drawing amendment estoppel · ordinary observer comparison · crowded field defense · functionality evidence · article of manufacture · total profits proof · preliminary injunction · post grant challenge · Hague filing · portfolio review
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