Understanding Design Patents 101, A Primer.

While design patents are not as popular as their utility patent peers, they still offer a number of benefits for inventors, particularly when seeking to protect the unique appearance of an item.

In simple terms, a “design patent” protects the way an article looks, as opposed to how it is used or how it works. The specific subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.

Unlike a utility patent, a design patent only has one claim. It relies largely upon the drawings to designate what the patent protects. As explained by the U.S. Patent and Trademark Office (USPTO), “As the drawing or photograph constitutes the entire visual disclosure of the claim, it is of utmost importance that the drawing or photograph be clear and complete, that nothing regarding the design sought to be patented is left to conjecture.”

A design patent application must be examined the USPTO and subjected to a prior-art search. Under U.S. patent law, a design patent will be granted to any person who has invented any new, non-obvious, original and ornamental design for an article of manufacture. However, it is important to note that the design patent protects only the appearance of the article and not structural or utilitarian features. Once granted, design patents have a term of 14 years.

Proving infringement of a design patent also differs. The “ordinary observer” test is used to determine whether a design patent has been infringed. As first explained by the Supreme Court in 1871, the primary question is “if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.” The “ordinary observer” is not an expert, but defined as “a purchaser of things of similar design” or “one interested in the subject.”

How Can I Help?

If you, or someone you know, need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Round corners.

In the seemingly never ending litigation between Apple and Samsung, I get a lot of questions about the $1.5B award in the only win Apple has had during all these legal battles.

Apple Inc. was granted a design patent for the rounded corners of its iPad tablet device, Patent D670,286 for “The Ornamental Design For A Portable Display Device.” However, from the drawings submitted in connection with the patent application, it is fairly clear that the patent is intended to cover the rounded rectangular shape of the tablet’s face.

Although it may seem strange to patent the corner shape of an electronic device, U.S. patent law provides for granting design patents to any person who has invented any new, original and ornamental design for an article of manufacture. The subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.

Unlike traditional patents, design patents only protect the appearance (ornamentality) of the article and not structural or utilitarian features.  In this case, Apple was granted protection for the rounded corners of the iPad which have no effect on how the device functions.

Although the design patent is yet another weapon in Apple’s fight against rival tablets, it is important to highlight that the patent only protects Apple from those who may try to mimic the look of the iPad and not its functionality.

How Can I Help?

As you can see, the way something looks can be as protectable as how it functions.  If you have a design you would like to patent, or you know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Help Me Pick A New Clock

I need to find a new clock for my bedroom.  The current only is nice, has big red letters, but gains about 5 minutes a week.  So I have to pick out a new clock.  So which one do you think I should get?

Nearly perfect!

Probably not good for night-time use.

I’m afraid it would only last one meal, I mean night.

As I get older, it may not be a good idea to show blurry time.

YIKES! Only good for one night, but you won’t need to hit the snooze button.

Hmmmm, there seems to be something slightly odd about this one. Nothing seems that far out of the ordinary when you first look at this clock. Looking closer you may notice the numbers seem a little high. This is because one complete rotation of this clock is equal to the average human lifespan. The clock is an artwork by bertrand planes which uses an ordinary clock slowed down 61320 times to make each minute equal to a year.  One clock, one life….maybe a little too much reality for everyday use.

This clock and a roller coaster have a lot in common.

A blank white board clock.  Could be useful to teach kids about time, or at the very least get some interesting time pieces.

Now we’re talking! A little math in the morning never hurt anyone.

Ummm…maybe I spoke too soon about the math in the morning.

Uh oh…I wonder what happens if I don’t get the correct answer.  Does time unravel?

Let me know which clock you think I should get.

How I Can Help

These clocks can be good candidates for a design patent. If you, or know someone can use my help to draft and file a design patent, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities.  Connect with me on Google +

Norman

More Bad News for Apple.

The U.S. Court of Appeals of Friday overturned an injunction banning sales of Samsung’s Galaxy Nexus smartphone.  The injunction that was ordered in June by a California district court was, according to the Court of Appeals, an unlawful “abuse” of the court’s discretion.

Source

This follows last weeks Samsung’s Galaxy Tab 10.1 tablet sales ban being lifted, in a related case in the ongoing legal wrangling between tech giants Apple and Samsung.

In August, a jury awarded Apple $1.5 billion against Samsung. The jury decided that Samsung had infringed seven Apple owned patents, mostly design patents.  Samsung has already demanded a retrial for the $1.5 Billion jury decision based on issues including jury misconduct.

In an odd twist of biting the hand that feeds you, Samsung manufactures more than a quarter of the parts in the Apple iPad and Apple iPhone, including the Retina(r) display.  But Apple, especially the late Steve Jobs, did not like the fact that Samsung also competes with Apple with their Android smartphones and tablets.

Here’s the text of the ruling.

If you need help to file a patent, copyright or trademark, or need help with a patent, copyright or trademark infringement issue, or know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities.  Connect with me on Google +

Norman

Should I File a Design Patent?

Generally, a “design patent” protects the way an article looks, or its ornementality, as opposed to a “utility patent” that protects the way an article is used and works. In some cases, an invention possesses both functional and ornamental characteristics, and both design and utility patents may be obtained.

What Is a “Design?”

As detailed by the U.S. Patent and Trademark Office, a “design” is defined as the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may refer to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.

What Can Be Patented?

As with a utility patent, a design patent must be approved by the USPTO. It is important to note that the following cannot be the subject of a design patent:

  • A design for an article of manufacture that is dictated primarily by the function of the article.
  • A design for an article of manufacture that is hidden in its end use and whose ornamental appearance is of no commercial concern prior to reaching its end use.
  • A design for an article of manufacture that is not “original.” For instance, a design that simulates a well known, or naturally occurring object or person is not original as required by the statute.
  • Subject matter that could be considered offensive to any race, religion, sex, ethnic group, or nationality is not proper subject matter for a design patent.

What Rights Does a Design Patent Afford?

A design patent has a term of 14 years from the date it is granted. Like a utility patent, it allows the owner to pursue legal action against infringers. With respect to design patents, courts will use the “ordinary observer” test. The test examines both the similarities and differences between the two products to determine if there is sufficient overall similarity that would mislead the ordinary observer into thinking they are the same product.

How I Help

If you have a design that you need help to patent, or know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities.  Connect with me on Google +

Norman