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Design patent protection is available for surface ornamentation, configuration, or a combination of both. While the configuration of a useful object may constitute a patentable design, a design dictated by considerations of function is not a proper subject for a design patent. Patent protection for designs is granted for a period of 14 years.
The Patent Act of 1952 allows for design patents. An inventor may obtain a design patent by filing an application with the USPTO directed towards a "new, original and ornamental design for an article of manufacture." Most design patent applications consist primarily of drawings that depict the shape or surface decoration of a particular product. They may concern any number of products, including apparel, automobile parts, computer products, containers, cosmetics, electronics products, textile designs, home furnishings, home appliances, jewelry, motor vehicles, office supplies, optics and toys.
To obtain protection, the design must not have been obvious to a designer of ordinary skill of that type of product. In addition, a design must be "primarily ornamental" to be awarded design patent protection. Similar to the doctrine of functionality in trademark law, if the design is instead "dictated by the performance of the article, then it is judged to be functional and ineligible for design patent protection." In such circumstances the designer should pursue a utility patent, which protects the functional and utilitarian aspects of products and processes.
Issued design patents confer the right to exclude others from the "unauthorized manufacture, use, or sale of the article embodying the patented design or any colorable imitation thereof." The scope of protection of a design patent is provided by drawings within the design patent instrument. To establish infringement, the design patent proprietor must prove that "in the eye of an ordinary observer, giving such attention as a purchaser usually gives," the patented and accused designs "are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it is the other." The courts also require that "no matter how similar two items look, the accused device must appropriate the novelty in the patented device" that distinguishes it from earlier designs. The term of a design patent is 14 years from the date the USPTO issues the patent.
- ↑ 35 U.S.C. §§171-73. See also MPEP 901.04, 1502 & 1502.01.
- ↑ 35 U.S.C. §171.
- ↑ 35 U.S.C. §103(a).
- ↑ Arminak and Associates, Inc. v. Saint-Gobain Calmer, Inc., 501 F.3d 1314, 1319 (Fed. Cir. 2007).
- ↑ Id.
- ↑ Goodyear Tire & Rubber Co. v. Hercules Tire & Rubber Co., 162 F.3d 1113, 1116-17 (Fed. Cir. 1988); see also 35 U.S.C. §289.
- ↑ In re Mann, 861 F.2d 1581, 1582 (Fed. Cir. 1988).
- ↑ Gorham Co. v. White, 81 U.S. (14 Wall.) 511, 528 (1871).
- ↑ Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984) (citation omitted).
- ↑ 35 U.S.C. §173.