In a recent decision, the International Trade Commission (ITC) ruled that the owner of a design patent could rely on it through Customs to block the importation of infringing products into the United States. In In re Certain Automotive Parts, Investigation No. 337-TA-557, 2007 WL 2021234 (ITS 2007), the ITC found that certain spare parts for Ford trucks being manufactured overseas without authorization infringed certain design patents owned by Ford. Pending the outcome of the appeal to the Court of Appeals for the Federal Circuit (CAFC), Ford vs. ITC, Docket No. 07-1357, Ford can take the ITC determination to the U.S. Customs Service, which must hold for inspection at the port of entry any spare parts that are covered by Ford's design patents. If the parts are considered to be infringing, they must be barred from entry into the U.S.
Design patents protect the ornamental appearance of a novel and non-obvious design. There is a non-statutory exception, the repair doctrine, which permits the lawful purchaser of a product to effect a repair. The accused importers in this case argued that the parts fell within this exception because they were to be used for repair purposes. The ITC disagreed, finding that the accused were importing complete replacement parts, which were themselves the subject matter of Ford's design patents.
Vol. 53, June 2010