What is a design patent?
Design patents protect the ornamental and cosmetic aspects of products, but NOT their function. The disclosure and description of the invention in a design application is entirely in the drawing and not in the words. The single claim in a design patent is for "the appearance of a -- whatever the product is usually called -- as shown in the drawing".
There is little breadth of protection provided by design patents. In the US, ever since 1878, the question of whether or not an accused product infringes a design patent is put in the terms "would a consumer who wanted to buy the patented product and who saw the accused product and the patented product next to each other on a shelf pick up the wrong one?". If the consumer canít readily tell the two products apart there is infringement, otherwise there isnít.
When a unique appearance is important to a product's success, a design patent can be a worthwhile investment. For example, computer icons, which are substantially all appearance and no substance, can be protected with design patents. On the other hand, internal and normally unseen components of a machine can not be protected with a design patent, regardless of how unusual their appearance may be.
Timing is often important in design applications. They should normally be filed just as the product is being completed -- a time that often finds the developer too busy to think about patent details. Filing earlier invites problems when subtle appearance changes occur as the product is being tooled up for manufacture.
Because a design patent can be obtained for a somewhat unusual looking version of a well-known product, several operators of invention marketing scams regularly steer people into getting worthless design patents. Their hopeful victim thinks he or she is getting a "regular" or utility patent on what the product does or how it is made, but all the victim's patent covers is the bizarre appearance that was probably dreamed up by the scam operator's drafter.
To compare design patents with other forms of intellectual property, see the linked table.
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