A design patent is a patent granted for the “ornamental design” (i.e. the look) of a functional item. Design patents have been granted for a plurality of different items ranging from tangible items such as cars, computers, lamps to non-tangible items such as mobile application icons and buttons on a computer screen.
The standard for a design patent is that the subject of the patent application must be new and unobvious, it must satisfy ornamental standards, and it must be created by the inventors or company seeking patent protection. The process to file a patent application for a design patent is much simpler than that for a utility patent. To file a design patent application one must have a predefined specification, a single claim which is written in a predefined form, and drawings/figures illustrating the ornamental features of their design. The standard for infringement as set forth in Egyptian Goddess Inc. v. Swisa, Inc. for determining if a design patent is infringed upon is whether “the accused product would appear substantially the same as the patent design from the point of view of an ordinary observer.”
Generally, a design patent is obtained for aesthetically appealing factors of a product. Design patents will only give protection to the design of the item, and not for any functional feature of the product, even if certain features of the design are function. For example, if your company had obtained a design patent on curved edges of a cell phone, you would only be given protection for the look of your design, and not the functional aspects created by easier use of a cell phone with curved edges. As you can tell, the line between functional aspects and design aspects of an application can appear blurry.
A question I commonly receive is how are design patents different than copyrights because both relate to aesthetic features of objects. However, copyrights relate to non-utilitarian features of an object, but only to the aesthetic features that can exists independent from the article. For example, if an artist had obtained a copyright for a specific pattern, the pattern may be applied to numerous different surfaces or objects, such as paintings, clothes, etc. On the other hand, design patents relate to ornamental features of a utilitarian object. For example, a company could obtain a design patent for the body of a car because the body shape/style of the car could not exist without the object itself.
Another question commonly asked is how design patents are different from trademarks because both can be used to identify the origin of products. Using the example above, the body style of a car could be used as an indicator of the car company that created the car. In this case, a company could receive both a trademark and a design patent for the body style of a vehicle. However, a big difference between design patents and trademarks is the theory of law a company can sue under. Under patent law, a company that obtained a design patent may sue another company for making, using, selling, importing or exporting products that are similar in design to their product. While, under trademark law a company can sue if the design caused another to be confused about the source or created of the product.
A main reason why companies obtain design patents is because it is easier to sue another company infringed on a design patent than under a utility patent, and it is easier to determine what products are infringing a design patent than a utility patent because utility patents may limitations that are latent in other products. Further, when litigating utility patents it is necessary to have claim construction to determine the meanings of the words in the claim, determine the scope of the claims, and determine if another product had each and every limitation as recited by the claims. Whereas when litigating design patents it is easier to tell if another product looks like your product.
Looking towards the future, many technology companies have obtained design patents related to computer icons and equipment. For example, Apple recently obtained a design patent for the following symbol.
Such a symbol could be used to identify music folders within a touch screen device. Further, companies may receive design patents so they can mass product different products more efficiently then their competitors.