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 Design Patent 

The patent laws of the United States provide for the granting of design patents to any person who has invented any new, original, and ornamental design for an article of manufacture.

A design patent protects only the ornamental appearance of an article, and not its structure or utilitarian features. (A utility patent covers structural or mechanical aspects). If a design is utilitarian in nature as well as ornamental (such as computer mouse design which is more comfortable to use), a design patent will not protect the design. Such combination inventions (both ornamental and utilitarian) can only be protected by a utility patent.

A design patent has a term of protection of 14 years from the date of issuance. Just like a utility patent, it cannot be renewed after 14 years, and so it is a limited monopoly. Just like a utility patent, one cannot sue to enforce a design patent until the date the patent is granted and issued.

An application for a design patent is much simpler than that for a utility patent. The specification section of the patent (text describing the invention) is rather short compared to a utility (mechanical) patent. Only one claim is permitted, and it also must follow a specific form. Unlike a utility patent, instead of having one or more claims explaining what is covered by the patent, a design patent has a single claim, namely, the drawings, not a detailed text describing the parts of the invention. The drawings in a design patent are similar to those in a utility patent, except that design patent drawings are created to show the ornamental features of the invention rather than its utilitarian aspects. Further, the drawings in a design patent are critical. If they are not done correctly to correspond with the item being protected, then the entire patent can be held by a Court or the Patent Office to be invalid.

If the application is allowable, the Patent and Trademark Office will issue a notice of allowance . As is the case with a utility patent, an issue fee (really a government tax) will be required for issuance and granting of the patent. However, the issue fee is only $280 ($560 for a large corporation), as opposed to $480 (or $960) for a utility patent. No fees are necessary to maintain a design patent in force.

Design patents and copyrights overlap in that they both cover aesthetic features of articles. Copyright is generally used for non-utilitarian articles (meaning articles which exist only for their looks and not for their usefulness). Examples of non-utilitarian articles covered by copyright include paintings, songs, books, and sculptures. Copyright does extend to utilitarian (mechanical) articles, but only to the extent the aesthetic features of the article can exists independently from the article. An example of this would be a sculpture which is used as the base of a lamp, or a painting which is applied to the side of an automobile.

Design patents are used to protect the new ornamental features of a utilitarian object. In cases where the aesthetic features themselves cannot be separated from the utilitarian object, a design patent can protect the ornamental features, while copyright protection cannot. For example, a design patent could protect the look of a computer CPU case, which would not be protectable under copyright law.

 Ezra Sutton, Esq., Plaza 9, 900 Route 9, Suite 201, Woodbridge, NJ 07095 
Copyright © 2004 Ezra Sutton, Esq. All rights reserved.