Most people are not aware that there are different kinds of patents. When we talk about patents – and here at the intellectual property team of Nexsen Pruet, we speak of little else – we are really referring to utility patents. But there are also “plant” patents, for, say, new strains of roses or new dwarf fruit trees, and there are “design” patents. I want to tell you about design patents.
Design patents provide exclusive rights to the ornamental features of articles of manufacture. In contrast, utility patents provide exclusive rights to the functional aspects of those articles of manufacture. While the function of an article is very important, sometimes the appearance of an article makes the difference between whether or not it sells.
Think back to the introduction of “Euro”-style coffee makers several decades ago. What did they do differently from a good old MR COFFEE coffee maker? Nothing, but Euro-style coffee makers looked a lot more interesting – like Darth Vader’s helmet sitting on your kitchen countertop – and they sold for two and three times the price.
All sorts of products can support use of design patents: toys, holiday ornaments, jewelry, pocket folding knives, even articles that are primarily functional as long as they have ornamental aspects. Moreover, is there any reason not to give functional articles a bit of design pizzaz? Suppose your product is highly functional and state-of-the-art, but looks the same on the outside as competing products. Why not add ornamentation in the form of a distinctive shape to the exterior to suggest to customers that your product is different?
Design patents are not as difficult or expensive to get as utility patents. They consist of not much more than drawings of the exterior surface of the article of manufacture. Portions of the exterior that are not ornamental can be drawn in a way so that they don’t count as part of your claim to an ornamental design. The external appearance shown in the drawings is what is protected, so design patents don’t offer very broad protection. But if someone sells a competing product that causes consumers to mistake that product for your designpatent- protected product because of its ornamental features, patent infringement may have occurred.
Design patents are not substitutes for utility patents but may complement them. In fact, it is possible to get both a design and a utility patents on the same article.
Products compete for the attention of consumers in many ways but certainly articles of manufacture compete based on their attractive appearance. Making sure that the appearance of your products is attractive is certainly a good idea, and protecting that appearance from copyists using design patents is a good idea, too.