"In deciding that the D'435 patent was infringed, the Commission affirmed-without further discussion-the finding of infringement in the Initial Determination that was issued by ALJ Doris Johnson Hines on July 10, 2025. In that decision, Judge Hines seems to have been persuaded to not only require a lower overall level of similarity than the Federal Circuit currently requires, but to also effectively ignore several claimed design elements, disregarding them as visually "minor," "trivial," or otherwise unimportant."
"It is true that there is a longstanding line of Federal Circuit cases saying that "minor differences between a patented design and an accused article's design cannot, and shall not, prevent a finding of infringement." But that doesn't-and shouldn't-mean that a judge (or a jury) can completely read claimed visual elements out of a design patent claim."
The ITC issued a limited exclusion order in a dispute between GoPro and Insta360, finding infringement of design patent D789,435. The Commission affirmed an Initial Determination by ALJ Doris Johnson Hines without further discussion. Judge Hines appears to have applied a lower overall similarity standard than Federal Circuit precedent requires and effectively ignored several claimed design elements by characterizing them as visually minor or trivial. While Federal Circuit cases establish that minor differences cannot prevent infringement findings, this principle should not permit judges to completely disregard claimed visual elements from design patent claims. The decision raises concerns about the appropriate standard for evaluating design patent infringement.
Read at Patently-O
Unable to calculate read time
Collection
[
|
...
]