The New Shape of Things: Design Patent Prosecution, Litigation, and Damages in 2026 [Taft IP Webinar Series]

This presentation provides an up-to-date roadmap for navigating the rapidly evolving design patent landscape, beginning with an analysis of critical prosecution strategy under the USPTO’s new Supplemental Guidance for computer-generated interfaces and icons — issued March 2026 — and how to draft claims that satisfy the written description requirement without unnecessarily sacrificing infringement scope in light of Curver Luxembourg v. Home Expressions. The second segment examines key post-LKQ infringement and invalidity decisions, demonstrating that fears of widespread design patent invalidation under the Federal Circuit’s broader Graham-factor obviousness standard have proven largely unfounded, and explores important practical tensions between the current analytical framework applied at the summary judgment stage and the holistic “ordinary observer test” that governs the ultimate infringement question at trial. Finally, the presentation concludes with a focused review of available design patent damages theories — including total profit, reasonable royalty, and lost profits — covering the appropriate circumstances for pursuing each, and surveying recent key damages decisions.

Eric Gaum is a Partner in Taft’s Intellectual Property group. He focuses his practice on complex intellectual property litigation involving patents, trademarks, copyrights, trade secrets, and related business torts and unfair competition. Eric has represented clients in litigation involving diverse technologies ranging from cellular telephone location-based services to chiral additives for cholesteric liquid crystal displays. Eric has practiced exclusively in the area of IP for 30 years and has extensive experience litigating and trying cases across the country—he has appeared in courts in Ohio, California, Colorado, Connecticut, Delaware, Florida, Georgia, Indiana, Iowa, Michigan, Minnesota, Missouri, Nevada, New York, Oregon, Pennsylvania, Texas, Virginia, Washington, and Wisconsin.

David Duski, Principal at Charles River Association (CRA) has over 20 years of experience providing economic consulting, litigation and licensing support, and damages expert testimony in intellectual property matters. He has served as an expert witness in US district and state courts and before the American Arbitration Association, addressing disputes involving patents, trademarks, trade secrets, copyright, false advertising, breach of contract, and more across a wide range of industries. David has lectured on IP damages and has been consistently recognized by IAM and Lexology Index (formerly Who’s Who Legal) as a leading expert and thought leader. Prior to CRA, he led a national IP consulting practice at a global advisory firm.  David is a licensed Certified Public Accountant, Certified Fraud Examiner, and Certified Licensing Professional. To learn more, visit: https://www.crai.com/our-people/david-duski/

Jeff Mote is a partner in Taft’s Intellectual Property group. Jeff is an IP trial lawyer, and trusted counselor, who helps companies protect what makes their businesses valuable—their ideas, brands, and technology. He blends courtroom experience with practical business sense to resolve high-stakes IP disputes and guide clients through complex deals. Companies with lean in-house teams often turn to him as an outside partner to design cost-effective litigation strategies, oversee eDiscovery (including litigation holds, ESI compliance, and document retention policies), and align legal risk management with their business goals. Jeff has tried and litigated patent, trade secret, copyright, trademark and unfair competition cases across the United States and before the U.S. Patent and Trademark Office (PTAB and TTAB) for clients ranging from emerging startups to global brands.