Design patent
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Revision as of 04:51, 13 September 2008
In the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers (see Fig. 1) and computer icons are examples of what can be covered by design patents.
A similar concept, a registered design can be obtained in other countries. In Japan, South Korea and Hungary, industrial designs are registered after performing an official novelty search. In Europe, one needs to only pay an official fee and meet other the formal requirements for registration (e.g. Community Design at OHIM, Germany, France, Spain).
For the member states of WIPO, cover is afforded by registration at WIPO and examination by the designated member states in accordance with the Geneva Act of the Hague Agreement).
Contents |
Protections
A US design patent covers the ornamental design for an object having practical utility. An object with a design that is substantially similar to the design claimed in a design patent cannot be made, used, copied or imported into the United States. The copying does not have to be exact in order for the patent to be infringed. It only has to be substantially similar.
Computer Images
Both novel fonts and computer icons can be covered by design patents. Icons are only covered, however, when they are displayed on a computer screen, thus making them part of an article of manufacture with practical utility. [1]
Prosecution
The prosecution of a design patent encompasses all of the tasks necessary for granting a design patent. In the United States you must be the inventor, a registered patent agent or patent attorney in order to prosecute and file design patent applications.
A typical United States Design patent application will include a transmittal, a specification, drawings and a declaration.
Publication of Application
In China, Canada, Japan, South Africa and the United States (35 U.S.C. § 122(b)(2)(A)(iv)) a design patent application is not published and is kept secret until granted.
In Brazil the applicant can request that the application be kept in secrecy for a period of 180 days from the filing date, this will also delay the prosecution and granting of the application for a 180 days.
In Japan an applicant can request that a design be kept secret for a period of up 3 years after the registration has been granted.
Notable design patents
- In 1842, George Bruce was awarded the first design patent, U.S. Patent D1 . The design patent was for a new font.
- In 1879, Auguste Bartholdi was awarded design patent U.S. Patent D11,023 for the Statue of Liberty. This patent covered the sale of small copies of the statue. Proceeds from the sale of the statues helped raise money to build the full statue in New York harbor.
- In 1919, three design patents were granted for the badge of the American Legion, U.S. Patent D54,296 ; the badge of the American Legion Women's Auxiliary, U.S. Patent D55,398 ; and the badge of the Sons of the American Legion, U.S. Patent D92,187 . The original terms of these patents were to have expired in 1933, but Congress has continually extended their protection . The patents would be extended for an additional fourteen-year term by an amendment to the National Defense Authorization Act of 2007 that passed the Senate on June 22, 2006.[3]
Comparison to utility patents
US utility patents protect the functionality of a given item. Providing the maintenance fees are paid, they are generally valid for up to 20 years from the date of filing (with some exceptions).
Design patents cover the ornamental nonfunctional design of an item. Design patents can be invalidated if the design has practical utility (e.g. the shape of a gear). Design patents are valid for 14 years from the date of issue. There are no maintenance fees.
Comparison to copyrights
Copyrights prevent nonfunctional items from being copied. In order to show copyright infringement, one must show that the infringing item was copied from the original. The copyrighted artistic expression must either have no substantial practical utility (e.g. a statue) or be separable from the useful substrate (e.g. picture on a coffee mug).
Design patents, on the other hand, cover the ornamental aspects of functional items from being infringed. One does not have to show that the infringing item was copied from the original. Thus a design that was arrived at independently can still infringe a design patent.
Many objects can be covered by both copyrights and design patents. The Statue of Liberty is one such example.
Comparison to trademark and trade dress
Trademarks and trade dress are used to protect consumers from confusion as to the source of a manufactured object. In order to get trademark cover, the trademark owner must show that the mark is not likely to be confused with other trademarks for items in the same general class. The trademarks can last indefinitely as long as they are used in commerce.
Design patents are only granted if the design is novel and not obvious for all items, even those of different utility than the patented object. An actual shield of a given shape, for example, can be cited as prior art against a design patent on a computer icon with a shield shape. The validity of design patents is not affected by whether or not the design is commercialized.
Items can be covered by both trademarks and design patents. The contour bottle of Coca-Cola, for example, was covered by a now expired design patent, but is still however trademarked.
References
1. ^ Saidman DesignLaw Group: Design Patent (Design Protection Tool)
2. ^ "American Legion Auxiliary Public Relations Handbook" (January 2005).
3. ^ In Brief: Amendment Extending Patent Passed in Senate. BNA Patent, Trademark & Copyright Journal, June 30, 2006.
