A design patent protects any new, original and ornamental design for an article of manufacture. Individuals and businesses use design patents to protect the ornamental designs of their products. Although a purely functional design is not patentable, a design that incorporates functional features can still be patentable if it has ornamental features that can exist independently of its functional features. A design patent does not protect the functional aspects of a design. The functional aspects of a design may be protected with a utility patent.
One of the biggest differences between a design patent and a utility patent is that the term of a design patent is 14 years while the term of a utility patent is 20 years. Another difference is that a design patent is much simpler and easier to draft and therefore is less costly than a utility patent. This is because in most cases a design patents claims are embodied in the drawings, which requires less time for a patent attorney to draft.
The drawings are the heart of a design patent. The solid lines in a design patent?s drawings depict the claimed features of the object. Broken lines can be used to depict the unclaimed environment surrounding the claimed design. In other words, the broken lines illustrate what the rest of an object could look like. The smaller the amount of solid lines in the drawings, the stronger or broader the patent.
Design patent infringement occurs when an object with a design that is substantially similar to the design claimed in a design patent is made, used or sold in the United States without permission. The design does not have to be exact for the patent to be infringed. It only has to be substantially similar. Design patents having line drawings cover only the elements illustrated as solid lines. Elements shown as dotted lines are not covered.
In a recent patent infringement case, Apple was awarded a jury verdict of $1.049 billion dollars in the U.S. case of Apple v. Samsung. Of that verdict, much of $746 million dollars was based upon design patents. In Apple vs. Samsung, even though Samsung’s Galaxy S 4G phone was not an exact copy of Apple’s iPhone, a jury found Samsung’s phone infringed Apple’s design patent because Samsung’s phone was substantially similar to what was claimed in the iPhone’s patent (or in other words, the solid lines of U.S. Patent no. D593087). If Apple had not broadly claimed the iphone’s designs with the fewest solid lines as possible, Samsung’s phone designs may not have been found to be infringing Apple’s design patents. Individuals and business should carefully determine what aspects of the design should be covered by a patent.
For more information contact Fahey Business Law and Intellectual Property.
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