In general, a “design patent” protects the way an article looks, as opposed to a “utility patent” that protects the way an article is used and works. In some cases, an invention possesses both functional and ornamental characteristics, and both design and utility patents may be obtained.
What Is a “Design?”
A “design” is defined as the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may refer to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.
What Can Be Patented?
As with a utility patent, a design patent must be approved by the United States Patent and Trademark Office. It is important to note that the following cannot be the subject of a design patent:
- A design for an article of manufacture that is dictated primarily by the function of the article.
- A design for an article of manufacture that is hidden in its end use and whose ornamental appearance is of no commercial concern prior to reaching its end use.
- A design for an article of manufacture that is not “original.” For instance, a design that simulates a well known, or naturally occurring object or person is not original as required by the statute.
- Subject matter that could be considered offensive to any race, religion, sex, ethnic group, or nationality is not proper subject matter for a design patent.
What Rights Does a Design Patent Afford?
A design patent has a term of 14 years from the date it is granted. Like a utility patent, it allows the owner to pursue legal action against infringers. With respect to design patents, courts will use the “ordinary observer” test. The test examines both the similarities and differences between the two products to determine if there is sufficient overall similarity that would mislead the ordinary observer into thinking they are the same product.
How I Can Help
Of course, this post provides only a broad overview of design patents. Before embarking on the patent process, it is advisable to consult with an experienced patent attorney. Please contact me if you have any questions.