What is a design patent? Design patent evaluation

A similar concept, a registered design, can be obtained in other countries. In Kenya, Japan, South Korea and Hungary, industrial designs are registered after an official novelty search. In various countries of the European Community, one needs only to pay an official fee and meet other formal requirements for registration (e.g. EUIPO, Germany, France, Spain).

For WIPO Member States, protection is provided through registration with WIPO and examination by designated Member States in accordance with the Geneva Act of the Hague Agreement.

Protect

A U.S. design patent covers an ornamental design for an object that has utilitarian uses. Articles substantially similar to the design claimed in the design patent may not be made, used, copied, or imported without the patent holder's permission. A copy does not have to be exact to infringe the patent. It only needs to be substantially similar. Design patents with line drawings cover only the features shown in solid lines. Items shown in dashed lines are not included.

Design patents are subject to the Patent Code’s standards of novelty and non-obviousness. However, since design patents are not measured on the utility of the designs they are intended for, it is an open question how to measure the non-obviousness of ornamental designs.

Computer graphics

Novel fonts and computer icons are both eligible for design patents. However, icons are only covered when they are displayed on a computer screen, making them part of an article of manufacture that has a useful purpose. [4] Screen layouts can also be protected by design patents.

Application Release

In China, Canada, Japan, South Africa and the United States, design patent applications are not made public and remain confidential until they are approved.

In Brazil, applicants can request that their applications be kept confidential for 180 days from the filing date. This will also delay the prosecution and approval of the application by 180 days.

In Japan, applicants can request that a design be kept confidential for up to 3 years after registration is granted.

Other forms of protection

Invention Patent

A U.S. utility patent protects the functionality of a given item. Utility patents are generally valid for 20 years from the filing date (with some exceptions), provided maintenance fees are paid.

Design patents cover ornamental, non-functional designs of articles. If the design has utilitarian properties (e.g. the shape of a gear), a design patent can be invalidated. Design patents are valid for 14 years from the date of publication if filed before May 13, 2015, and 15 years from the date of publication if filed on or after May 13, 2015.

“Generally speaking, a ‘utility patent’ protects the way an article uses and works (35 USC 101), while a ‘design patent’ protects the appearance of an article (35 USC 171). The ornamental appearance of an article includes its shape/configuration or surface decoration applied to the article, or both. If an invention resides in both its utilitarian and ornamental appearance, a design and utility patent may be obtained on that article.

copyright

Copyrights prevent non-functional items from being copied. To prove copyright infringement, the plaintiff must prove that the infringing item was copied from an original. Copyrighted artistic expressions must either have no substantial practical use (such as a statue) or be separable from a useful substrate (such as a picture on a coffee mug).

On the other hand, a design patent protects the decorative aspects of a functional article from infringement. It is not necessary to prove that the infringing article was copied from the original. Therefore, an independently completed design can still infringe a design patent.

Many objects can be protected by both copyright and design patents.

Trademarks and Trade Dress

Trademarks and trade dress are used to protect consumers from being confused about the source of a manufactured object. To obtain trademark protection, the trademark owner must prove that the mark is not likely to be confused with other marks for the same class of goods. Trademarks can be used indefinitely as long as they are used in commerce.

A design patent is granted only if the design is novel and not obvious to all, even for designs that have a different utility from the subject of the patent. For example, an actual shield of a given shape can be cited as prior art to oppose a design patent for a computer icon with a shield shape. The validity of a design patent is not affected by whether the design has been commercialized.

Goods can be protected by both trademarks and design patents.