Business, Legal & Accounting Glossary
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 jewellery, 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).
A US design patent covers the ornamental design of 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.
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.
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.
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 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.
US utility patents protect the functionality of a given item. 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.
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.
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 Coke(tm) bottle, for example, is covered by design patent (now expired, see Fig. 1) and a trademark (still in force).
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This glossary post was last updated: 20th April, 2020 | 1 Views.