Have You Considered Design Patents?
Design patents can be a powerful, and often underutilized tool, for protecting your products and market position. Design patents protect the ornamental features (think appearance) of an article of manufacture, as opposed to protecting its structure and function. Some items are obvious candidates for design patents because consumers are primarily attracted to them based on their appearance. However, other products derive their value from their structure and operation and their appearance. These products may be candidates for both utility patents and design patents. For example, while consumers are certainly attracted to Apple’s iPod because of its ability to play digitally recorded music, the company also seeks to protect the appearance of the device through design patents. Here are a couple of iPod examples: U.S. Design Patent No. D634,297 and D644,264.
Here are some key reasons to consider protecting products with design patents:
1) Design Patents May Provide Some Protection Once the Structure and Function of the Product Becomes Old in the Art
Certain products are commodities in terms of their function or are otherwise known in the art. Thus, utility patents will not be an option. However, by designing in ornamental features and protecting them with a design patent, you may be able to at least prevent direct copying of the product. A strong design can lead consumers to associate the appearance with the function, and consumers may ultimately be reluctant to buy competitive products that operate similarly but look different. These considerations likely influenced Apple’s design patenting strategy with the iPod.
2) Design Patents Provide “Trade Dress” Type Protection Without Requiring Acquired Distinctiveness
A product’s design can be protected as “trade dress.” However, to do so you have to show that the appearance is functioning as an indication of the source of the product by establishing that the trade dress has acquired “secondary meaning.” This showing is not required for design patents, although the design must be novel and non-obvious to qualify for patent protection.
3) Design Patents are Relatively Inexpensive
Design patents consist of a set of drawings and a short description of the drawings. Thus, they are far less complicated than utility patents and far less expensive. It is important to be careful and ensure that all of the views of the drawings are consistent with one another to avoid problems in the Patent Office, but they are still less expensive than utility patents.
In addition, there is an expedited examination procedure in the U.S. Patent and Trademark Office which can be used to accelerate the time frame for obtaining a patent. This can be important if the aesthetic features of the product have a short shelf-life because designs change frequently.
Consider whether design patent protection makes sense for your next product!