Design patent
Encyclopedia
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, a design patent is a patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
granted on the ornamental design of a functional item. Design patents are a type of industrial design right
Industrial design rights
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three...
. Ornamental designs of jewelry, furniture, beverage containers (see Fig. 1) and computer icons
Icon (computing)
A computer icon is a pictogram displayed on a computer screen and used to navigate a computer system or mobile device. The icon itself is a small picture or symbol serving as a quick, intuitive representation of a software tool, function or a data file accessible on the system. It functions as an...
are examples of objects that are covered by design patents.
A similar concept, a registered design
Industrial design rights
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three...
can be obtained in other countries. In Kenya
Kenya
Kenya , officially known as the Republic of Kenya, is a country in East Africa that lies on the equator, with the Indian Ocean to its south-east...
, Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, South Korea
South Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
and Hungary
Hungary
Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The...
, industrial designs are registered after performing an official novelty search. In the countries of the European Community, one needs to only pay an official fee and meet other formal requirements for registration (e.g. Community design
Community design
A Community design is a unitary industrial design right that covers the European Union. It has both unregistered and registered forms. The unregistered Community design came into effect on 6 March 2002 and the registered Community design was available from 1 April 2003.-Legal basis:Council...
at OHIM
Office for Harmonization in the Internal Market
The Office for Harmonization in the Internal Market , or OHIM is the trademark and designs registry for the internal market of the European Union. It is based in Alicante, Spain, and its president is António Campinos.- Task :...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
).
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
Hague Agreement
Hague Agreement may refer to:* The Dutch-Indonesian Round Table Conference* The Hague Agreement Concerning the International Deposit of Industrial Designs...
.
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 copy does not have to be exact 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.Prosecution
The prosecutionPatent prosecution
Patent prosecution describes the interaction between applicants and their representatives, and a patent office with regard to a patent, or an application for a patent...
of a design patent encompasses all of the tasks necessary for granting a design patent. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
you must be the inventor, a registered patent agent or patent attorney
Patent attorney
A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing an opposition...
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 ChinaChina
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
((b)(2)(A)(iv)) a design patent application is not published and is kept secret until granted.
In Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
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
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
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 BruceGeorge Bruce (Design patent)George Bruce was a Scottish-American inventor and businessman. Co-owner of a type foundry in New York, on 9 November 1842 he was awarded the first design patent for fonts .Emigrating from Scotland to the United States in July 1795, he was one of the...
was awarded the first design patent, . The design patent was for a new fontTypefaceIn typography, a typeface is the artistic representation or interpretation of characters; it is the way the type looks. Each type is designed and there are thousands of different typefaces in existence, with new ones being developed constantly....
. - In 1879, Auguste BartholdiFrédéric BartholdiFrédéric Auguste Bartholdi was a French sculptor who is best known for designing the Statue of Liberty.-Life and career:...
was awarded design patent for the Statue of LibertyStatue of LibertyThe Statue of Liberty is a colossal neoclassical sculpture on Liberty Island in New York Harbor, designed by Frédéric Bartholdi and dedicated on October 28, 1886...
. 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 harborNew York HarborNew York Harbor refers to the waterways of the estuary near the mouth of the Hudson River that empty into New York Bay. It is one of the largest natural harbors in the world. Although the U.S. Board of Geographic Names does not use the term, New York Harbor has important historical, governmental,...
. - In 1919, three design patents were granted for the badge of the American LegionAmerican LegionThe American Legion is a mutual-aid organization of veterans of the United States armed forces chartered by the United States Congress. It was founded to benefit those veterans who served during a wartime period as defined by Congress...
, ; the badge of the American Legion Women's Auxiliary, ; and the badge of the Sons of the American Legion, . The original terms of these patents were to have expired in 1933, but Congress has continually extended their protection. The patents were 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. - In 1936, Frank A. Redford was awarded for the Wigwam MotelWigwam MotelThe Wigwam Motels, also known as the "Wigwam Villages", is a motel chain in the United States in which the rooms are built in the form of teepees, hence the name "wigwam". It originally had seven different locations: two locations in Kentucky, a location in Alabama, another location in Florida, one...
.
Comparison to utility patents
US utility patentPatent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s protect the functionality of a given item. Providing the maintenance fees are paid, utility patents 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
CopyrightCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
s prevent nonfunctional items from being copied. To show copyright infringement, you must show 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
Statue of Liberty
The Statue of Liberty is a colossal neoclassical sculpture on Liberty Island in New York Harbor, designed by Frédéric Bartholdi and dedicated on October 28, 1886...
is one such example.
Comparison to trademark and trade dress
Trademarks and trade dressTrade dress
Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers...
are used to protect consumers from confusion as to the source of a manufactured object. To get trademark protection, 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
Coca-Cola
Coca-Cola is a carbonated soft drink sold in stores, restaurants, and vending machines in more than 200 countries. It is produced by The Coca-Cola Company of Atlanta, Georgia, and is often referred to simply as Coke...
, for example, was covered by a now expired design patent, but is still however protected by trade dress.
See also
- GeschmacksmusterGeschmacksmusterUnder German law, the Geschmacksmuster is a form of intellectual property that extends industrial design rights over the visual design of objects that is not purely utilitarian...
- Industrial design rightsIndustrial design rightsAn industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three...
- Intellectual property organizations
- InventionInventionAn invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
, e.g., scroll down for Invention in Design and Architecture - Office for Harmonization in the Internal Market, Designs (OHIM) (European UnionEuropean UnionThe European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
) - PatentPatentA patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
External links
- The United States Design Patent Application Filing Guide
- The Canadian Intellectual Property Office
- The State Intellectual Property Office of China
- The Office for Harmonization in the Internal Market - European Community Design
- Taiwanese Intellectual Property Office
- Kenya Industrial Property Institute
- Korean Intellectual Property Office