WHAT IS A
DESIGN PATENT ?
A design patent is a
particular type of patent.
A design patent protects
the ornamental appearance of an article of manufacture
exactly as shown in the drawings. It does not protect any
functional features of the article shown in the drawings
and does not protect any features not shown.
For example, if the
actual object produced or sold by the design patent owner
has certain ornamental features on its back and these
were not shown in the drawings of the patent, then those
features can be copied by anyone else.
Design
Patents
The patent laws provide
for the granting of design patents to any person who has
invented any new and non-obvious ornamental design for an
article of manufacture. The design patent protects only
the appearance of an article, but not its structural or
functional features. The proceedings relating to granting
of design patents are the same as those relating to other
patents with a few differences. See current fee schedule
for the filing fee for a design application. A design
patent has a term of 14 years from grant, and no fees are
necessary to maintain a design patent in force. If on
examination it is determined that an applicant is
entitled to a design patent under the law, a notice of
allowance will be sent to the applicant or
applicant’s attorney, or agent, calling for the
payment of an issue fee. The drawing of the design patent
conforms to the same rules as other drawings, but no
reference characters are allowed and the drawing should
clearly depict the appearance, since the drawing defines
the scope of patent protection. The specification of a
design application is short and ordinarily follows a set
form. Only one claim is permitted, following a set form
that refers to the drawing(s).
WHAT IS A COMMUNITY
DESIGN ?
The implementation of the
European Directive offers a relatively simple and cost
effective mechanism for designers worldwide to obtain
protection for their designs in the European Union. Thus,
instead of submitting a separate application in each of
the 15 member countries, a designer can now submit a
single application to obtain design protection throughout
the Union. In the U.S., the requirement for protection
under 35 U.S.C. § 171 is a new, original, and
ornamental design for an article of manufacture.
The requirement for
protection under Article 4 of the European Directive is a
new design that has individual character. While the
requirements for obtaining a design patent are similar,
the mechanics by which such a patent right is obtained
differ greatly between the United States and the European
Union.
The U.S. provides a
substantive examination of both novelty and
nonobviousness, thereby treating the design patent
application just as a utility patent application. The
European Community Design is in effect a registration
that does not undergo any substantive examination with
respect to available prior art. In addition, the U.S.
allows only one design to be claimed in each application,
although a single design may include multiple embodiments
illustrating an overall similar inventive concept. In
contrast, a European Community Design application may
include multiple designs.
Regarding scope, special
situations can arise in which the U.S. and European
design systems yield different protection. Accordingly,
it is not always in the best interest of the designer
merely to submit to the USPTO what was submitted in the
European application and vice versa. One special
situation is the treatment of component parts under
European law and U.S. law.
In order to receive
protection from a European Community Design, a component
part must be visible to the end user during normal use of
a complex product. U.S. law is broader in that visibility
only at some point during the commercial life of the
product is sufficient to qualify the part, i.e., the
article of manufacture, for design protection.
The European Directive
also provides an Unregistered Community Design right that
is effective immediately following the creation of the
design without subsequent action on the part of the
designer.
The U.S. does not
currently provide a similar right under the patent law
system, but copyright protection may apply.
M. K. Silverman
