All about Design Patents
Chances are, somewhere close to where you're seated, you've got a box full of CDs. Take a look through them. If you're like the average computer user, you've got CDs sitting in plastic cases that are square or round, made of hard plastic or soft plastic. Some are yellow, some are clear, and some cases they may even be made of paper. The utility of a CD case is the same: to cover the CD so outside sources do not scratch or ruin it. Nevertheless, all of these variations on the general CD case most likely have different patents for their design, based on a single, previously filed utility patent.
A design patent, in the most simple of terms, is assigned to a fundamental decorative change to an object that does not change its overall usage. To understand how a design patent differs from a utility patent, consider a simple pair of black sunglasses, which has been patented. An inventor that decides to change the sunglasses so that they are rounder with green rims would be granted a design patent. An inventor that adds nose clips to make the glasses more comfortable would be granted a utility patent.
Similar to any other patent, a design patent specifically protects the product from being sold or imported by any unauthorized individuals. The design patent is only held by the US Patent and Trademark Office for 17 years. This is less than the 20 years granted to a utility patent, but the design patent holder will not need to keep the patent alive by paying regular fees. What's more is the application itself is much simpler to fill out. There's no need to clarify what the usage of the patent is, or draw out the creation's functionality. The USPTO does require the patent applicant to describe how it's original and ornamental. The application must compare the invention to prior-art, or patented products that may look very similar to the creation. What the USPTO is most concerned with is the quality of the pictures representing the aesthetic changes, and they expect the pictures to be thorough. They react favorably to applications containing photographs in this case.
Design patents can be difficult to differentiate from utility patents sometimes. An ornamental change may arguably also be a utility change. In addition, a first time designer may be confused about whether they need to apply for a patent, a trademark or a copyright. It's likely they've seen all in use and associated to something decorative, so they may think initially that their invention may require one of the three, or maybe all three. What they will need to consider is that a decorative change to an existing item cannot fit the definition of a trademark because a trademark refers to the name associated to a product. It also cannot fit the definition of a copyright if it isn't related to a type of document.
Some of the lesser known things that could arguably earn a design patent are fonts and computer icons. In fact, the very first design patent to be granted was on a font. Both computer fonts and icons, in order to be patented, must be actively used. In any case, if you're an artist and have a fantastic idea about how to make a product more marketable, you may find that applying for a patent will be one of the greatest things you've ever done.
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