Design Patent Mediation Services
A Smarter, More Efficient Way to Resolve Design Patent Disputes
Design patent disputes are uniquely challenging because they turn on the “ordinary observer” test — a subjective standard that focuses on how consumers perceive the overall visual appearance of a product (e.g., ornamental, non-functional features). Litigation over these claims can be unpredictable, expensive, and disruptive to business momentum. Mediation provides a confidential, structured, and cost-effective way to assess risk, compare designs, and explore commercially practical resolutions without the uncertainty of court outcomes.
Understanding the Nature of Design Patent Disputes
Design patents protect the ornamental appearance of a product — not its functional features. Because the legal analysis centers on visual similarity, parties often hold strongly divergent views of whether one design infringes another. Mediation allows those perspectives to be explored constructively while referencing evidence such as consumer perception, product category, and market context. This structured dialogue often reveals areas of overlap that litigation obscures, making mediation a strategic early-stage intervention.
Why Mediation Is Effective for Design Patent Matters
Design patent cases frequently involve high litigation costs, rapid market cycles, or product lines with short shelf lives. Mediation allows parties to resolve disputes quickly, reduce exposure, and regain certainty. Unlike litigation, mediation enables parties to explore flexible business-driven outcomes such as redesign, licensing, phased withdrawal, co-existence agreements, or channel segmentation. The process minimizes brand damage while preserving relationships and commercial opportunities.
Common Scenarios Involving Design Patent Mediation
Design patent mediation is commonly used for disputes involving consumer products, packaging, industrial design, fashion items, electronics, accessories, and brand-defining product lines. These matters often arise in competitive markets where visual identity significantly influences consumer choice. Because these disputes can escalate quickly, mediation helps stabilize the situation, control messaging, and avoid the publicity of a lawsuit. It is also effective following a cease-and-desist exchange or at the early stages of litigation, particularly if the patent owner seeks a preliminary injunction.
What to Expect During the Mediation Process
We guide parties through a structured process beginning with pre-mediation review of key documents, contested designs, prosecution history, prior art, and any expert viewpoints. During mediation, parties participate in joint discussion to clarify issues, followed by confidential caucuses to explore settlement options. The mediator facilitates realistic evaluation of infringement arguments, validity challenges, design alternatives, and business risks. The process is confidential, efficient, and designed to reach agreement in a single session whenever possible.
Practical Resolutions Achieved Through Mediation
Successful outcomes may include settlement payments, licensing agreements, royalties, redesign commitments, timelines for market transition, co-branding arrangements, geographic limitations, or portfolio-wide settlement frameworks. Mediation encourages creative solutions that courts cannot order, allowing parties to maintain market share, avoid injunctions, and preserve strategic product plans. The process focuses on practical business needs rather than purely legal positioning.
Why Choose Klemchuk Mediation?
Led by an IP trial lawyer with nearly 30 years of broad intellectual property law experience
More than 1,000 IP disputes handled — including 80+ patent cases
Deep understanding of technical, legal, and business issues
Skilled at bridging communication gaps between parties
Neutral, confidential, and business-aligned dispute resolution
Resolve Your Design Patent Dispute Efficiently
Get neutral, strategic guidance tailored to design-driven conflicts.
Design Patent Mediation Services – Frequently Asked Questions (FAQs)
What is the legal standard for design patent infringement?
Design patent infringement is evaluated under the “ordinary observer” test, which asks whether an ordinary purchaser would find the accused product substantially the same in overall appearance as the patented design. Because this test relies heavily on visual impressions, mediation provides an ideal environment to discuss consumer perception outside the rigidity of litigation.
Can mediation help if we disagree on whether the designs are similar?
Yes. Mediation allows parties to explore the basis for similarity or distinction through structured dialogue, comparisons, and review of prior art. This often reveals gaps in understanding or alternative perspectives that litigation may not address.
Is mediation useful if a redesign may be required?
Absolutely. Mediation is one of the best ways to negotiate redesign timelines, scope of changes, temporary allowances, and market withdrawal strategies. These practical outcomes are often unavailable in court.
Can we mediate if litigation has already started?
Yes. Many courts encourage mediation for design patent cases because they can be fact-intensive and expensive. Mediation is also effective early in litigation, before claim construction or expert analysis dramatically increases costs.
What happens if the product is part of a larger product line?
Mediation allows parties to address not just the accused design, but the entire design ecosystem — related products, future concepts, packaging, or branding elements. This holistic approach often leads to more durable resolutions than issue-by-issue litigation.
Do parties usually need experts present for design patent cases?
Experts are optional. Many mediations proceed effectively with attorney presentations and visual comparisons. However, parties may choose to use experts to discuss consumer impressions, prior art, or design distinctiveness.
What business benefits does mediation offer?
Mediation reduces risk, protects brand identity, preserves commercial opportunities, and allows parties to control both outcome and cost. It also prevents negative publicity and the unpredictability of jury-based visual comparison cases.
Is the mediation process confidential?
Yes. Mediation is private and confidential. Statements made during mediation cannot be used later in litigation, preserving both strategic and commercial interests.
Related IP Mediation Services
To support broader intellectual property and technology matters, we also provide:
Patent Mediation — Patent mediation provides a structured, confidential process to resolve infringement, NPE patent disputes, licensing, FRAND, and joint development disputes efficiently. It helps parties evaluate technical and legal risk while exploring business-driven solutions unavailable through litigation.
NPE Patent Infringement Mediation — “NPE” (Non-Practicing Entities) or pejoratively, “patent troll” litigation can present unique challenges over typical patent infringement cases due to the costs of litigation versus settlement value. Due to the attorney’s fees and damages issues with these cases, we offer expedited mediation services for these kind of disputes.
Trademark & Branding Mediation — Trademark and branding mediation focuses on resolving disputes involving brand confusion, coexistence, unfair competition, and rebranding. It balances legal risk with market value to protect brand identity and reduce costly escalation.
Copyright Mediation — Copyright mediation helps creators, rights-holders, parties accused of infringement, and businesses resolve disputes over infringement, ownership, licensing, authorship, and digital content. It provides a private, respectful environment that supports collaborative and commercially practical solutions.
Image Copyright Infringement Mediation — Mediate small cases involving the assertion of a copyright in a digital image often involving alleged publication on a website, blog, or social media. Due to the attorney’s fees and damages issues with these cases, we offer expedited mediation services for these kind of disputes.
Trade Dress Mediation — Trade dress mediation resolves disputes around product appearance, packaging, store layout, and overall brand presentation. The process helps parties assess consumer perception and develop adjustments that protect brand equity without market disruption. It also addresses claims of trade dress infringement.
Trade Secret Mediation — Trade secret mediation provides a confidential forum to address misappropriation, NDA and confidentiality agreement breaches, employee mobility, and competitive information disputes. It protects sensitive information while guiding parties toward secure, business-focused outcomes.
Software, SaaS, & Technology Mediation — Technology mediation helps resolve conflicts involving software and technology development agreements, licensing, integration failures, performance disputes, and product ownership. It clarifies expectations and rights while keeping complex technology projects moving forward.
Online Marketplace & Domain Name Mediation — This mediation service addresses disputes involving domain ownership, takedowns, DMCA violations, counterfeit enforcement, reseller conflicts, unauthorized sellers, and ecommerce platform issues. The process provides fast, practical solutions designed to reduce disruption and protect reputation.
Partnership & Founder IP Ownership Mediation — Founder and partnership mediation clarifies ownership, rights, and control of jointly created intellectual property. It preserves relationships and business continuity by guiding fair allocation and future-use agreements. It also helps one founder exit maximizing the value of the business for both sides.
These related processes help maintain consistency where IP rights overlap across multiple asset categories.
Disclaimer: Klemchuk Mediation does not provide legal services. See Klemchuk PLLC’s IP Legal Services page for services provided by the firm.