In a recent Law360 article, Thompson Coburn associates Sylvia Turner and Alex Weidner highlighted key patent litigation trends to watch in 2026, emphasizing the growing importance of design patents. Both attorneys noted a steady rise in design patent litigation—a trend they expect will accelerate.
“We want to treat design patents as core assets, not just as supplemental ornamentation,” said Sylvia. “As these cases are progressing through the Federal Circuit, and we anticipate seeing more litigation, we’re thinking that design patents are going to become lynchpins of defensible products differentiation.”
Alex said design patents are also more attractive than utility patents when it comes to damages, as the latter faces an increasingly complex and unsteady utility patent calculation.
He pointed to the Federal Circuit’s en banc decision from May in EcoFactor v. Google, which overruled a verdict due to unreliable evidence from an expert who tried to convert reasonable royalties EcoFactor had in outside license agreements to a lump sum for Google.
Utility patents tend to be reasonable royalties, though, Alex said.
“You need to [analyze] what that royalty would be, and you’re going to get some percentage of the total profits or sales at issue,” he said. “In terms of design patents, [the Patent Act] allows you to get total profits. And it even helps with the burden because the patentee needs to show gross profits, and it’s up to the defendants to establish some of the deductions. Oftentimes, it can be a simpler analysis that is less susceptible to challenge on appeal.”
Read the full article here.
