Design Patent

When most people refer to patents, they are referring to utility patents. That is in part because approximately 90% of all patent applications filed with the United States Patent and Trademark Office (USPTO) are applications for utility patents. That said, there are other types of patents that can be granted as well including design patents. Although design patents and utility patents protect separate aspects of an invention, it is important to note that a given invention is not appropriate for one or the other; rather, an inventor could file both a utility patent and a design patent on the same invention. These patents would cover different aspects of the invention. For example, Apple could file a design patent on the curved shape and all black screen and interface of its iPhone as well as a utility patent on the zooming touchscreen function used on that iPhone.

Design patents cover designs, which are defined under the U.S. patent law as “the visual ornamental characteristics embodied in, or applied to, an article of manufacture.” Design patents can be useful in a number of different industries. For example, design patents can cover the ornamental aspects of nearly any product, ranging from jewelry and fashion to computer hardware. That said, design patents will not protect a design that is also utilitarian; for example, a mouse design that is ornamental but is also designed with the comfort of the user’s hand in mind cannot be protected by a design patent. Rather, a utility patent would have to be filed on that mouse that emphasizes its utilitarian function as an ergonomically designed invention. Thus, design patents protect designs when the design is developed expressly for the purpose of creating an ornamental product appearance. When considering the differences between a utility patent and a design patent, one should also note that a utility patent grants a twenty-year term to the inventor to exclude others from practicing the patent, while a design patent grants a fourteen-year term for analogous rights.

Design patents also have a strong interplay with other areas of intellectual property that are important to take note of as part of a company’s overall intellectual property strategy. For example, design patents and copyrights can co-exist on a single invention or work where the non-functional design elements are separable from the functional elements of a work or invention. That said, design patents would go further than copyright, particularly where the aesthetic features themselves are inseparable from the utilitarian components. In such cases, a design patent can still protect the ornamental features of the invention, whereas a copyright cannot. There is also an important interplay with trademark law. Design patents can often provide protection for an initial fourteen-year period, after which trademark rights can be used once the patent expires. Bear in mind, trademark rights are fundamentally different from design patent rights, as the former protect against the likelihood of consumer confusion and dilution rather than granting rights to exclude, but in practice similar results can be achieved. To learn more about design patents and their interplay with other forms of intellectual property, consult an IP attorney.