Intellectual Property – Design Patents

In last month’s newsletter I discussed how inventions having utility, that is functionality and usefulness, can be protected by utility patents.

This month I’ll cover another kind of patents, design patents, which are used to protect the artistic value of inventions.

What is a Design Patent

Design patents cover the ornamental, nonfunctional aspect of an item which itself has practical utility.

Examples

Such patents include flower patterns on fabric, architectural designs, fashion designs, jewelry, furniture, beverage containers, type fonts, computer icons and styled music players. Apple Inc. recently received the design patent D630630 for the shape of its iPad.

Another famous design patent D48160 was issued for the shape of the Coca-Cola bottle:

Other notable design patents include:

• Patent D1 awarded to George Bruce in 1842 for a new font.
• Patent Patent D11,023 granted to Auguste Bartholdi in 1879 for the Statue of Liberty. Proceeds from the sale of small copies of the statue helped fund the construction of the full statue in New York harbor.

Inventor’s Rights

A design patent may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. The inventor can exclude anyone from making, using, or copying this object or any other object with a substantially similar design, or importing such objects in the United States. A design patent is infringed by exact copies as well as copies that are substantially similar.

Cost and Coverage

Design patents are less expensive to obtain than utility patents but provide less protection to the inventor because they are more easily circumvented.

Unlike utility patents which have a life of 20 years, design patents last only 14 years from the date the patent is awarded. They do not require maintenance fees and have substantially lower filing fees. Provisional design patents are not allowed.

Comparison to Copyrights

In contrast to design patents, copyrights prevent nonfunctional items from being copied. The copyrighted artistic expression must either have no substantial practical utility (e.g. a painting) or be separable from the useful substrate (e.g. picture on a coffee mug). To show copyright infringement, one must show the infringing item was copied from the original. Thus if someone independently creates an already copyrighted work of art, he does not violate copyright. In some cases, objects can be protected both by a copyright and a design patent.

Drawings are Most Important

In a design patent application, the drawings convey the artistic value of the invention and are therefore its most important aspect. Black and white drawings are preferred by the USPTO. Photographs and color drawings can be used but only if accompanied by a petition explaining why such photograph or color drawings are essential, and cannot be substituted by black and white drawings.

The drawings should be clear and unambiguous and must include a sufficient number of views to constitute a complete disclosure of the appearance of the design claimed.

A Single Claim

A design patent has a single claim that refers to the drawings. This claim could state, for example, “The ornamental design for (the article which embodies the design or to which it is applied) as shown.”

For archived newsletters and a lot of information for the small inventor go to: www.patentsandventures.com.

If you have any question you can contact me at (858)259-2226 or email me at glevy@patentsandventures.com.

This newsletter should not be construed as being legal advice. ©2009 by George Levy