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UK vs US penalties for registered design infringement, 2016 edition

5 January 2016

A series of US design patents (analogous to UK registered designs (UKD)) filed by Microsoft in 2006 have been brought into focus by Microsoft’s lawsuit against Corel for infringement deriving from Corel’s Home Office software. The user interface designs in question include the dialog box launcher and slider bar.

Based on the May 2015 US ruling in Apple v Samsung concerning infringement of part of a product, if Corel is found liable it could be ordered to pay Microsoft all profits from Corel Home Office. This is in sharp contrast to penalties for UKD infringement, where typically an account of profit (as an alternative to damages) will be limited to an amount attributable to the use of the infringed feature: Ifejika v Ifejika and another [2014] EWHC 2625 (IPEC).

The UK is not soft in matters of registered design infringement, however, particularly since section 13 of the Intellectual Property Act 2014 introduced criminal sanctions in certain circumstances and section 10 removed the exemption for innocent infringers from having to account for their infringing profits. Time will tell how fines or accounts awarded under this new legislation differ from the court’s historic approach.

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