Design patent

In the United States, a design patent is a form of legal protection granted to the ornamental design of an article of manufacture. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers (Fig. 1) and computer icons are examples of objects that are covered by design patents.

A similar intellectual property right, a registered design, can be obtained in other countries. In Kenya, Japan, South Korea and Hungary, industrial designs are registered after performing an official novelty search. In the countries of the European Community, one needs to only pay an official fee and meet other formal requirements for registration (e.g. Community design at EUIPO, Germany, France, Spain).

For the member states of WIPO, cover is afforded by registration at WIPO and examination by the designated member states in accordance with the Hague Agreement. This allows for broad worldwide coverage of a design by filing a single application in a single language (e.g. English).

A US design patent covers the ornamental design of an article of manufacture. An object with a design that is substantially similar in appearance to the design claimed in a design patent cannot be made, used, sold or imported into the United States without the permission of the patent holder. The object does not have to be exact for the patent to be infringed. It only has to be substantially similar in overall appearance. Design patents with line drawings cover only the features shown as solid lines. Items shown in broken lines are not covered. This is one of the reasons Apple was awarded a jury verdict in the US case of Apple v. Samsung. Apple's patent showed much of their iPhone design as broken lines. It didn't matter if Samsung was different in those areas. The fact that the solid lines of the patent were the same as Samsung's design meant that Samsung infringed the Apple design patent.

Design patents are subject to both the novelty and non-obviousness standards of the patent code. However, because design patents are not measured based on the utility of the designs to which they are directed, there is an open question as to how to measure the non-obviousness of an ornamental design. There is substantial case law, however, on how to evaluate design patent non-obviousness.

Once a design patent has been submitted, it begins a term of protection. In the United States, for a design patent whose application was submitted on or after May 13, 2015, that patent has a term limit of 15 years from its date of grant. For a design patent whose application was submitted prior to that date, the term limit is 14 years from the date of grant. During this period the patent holder is entitled to bring a lawsuit against any entity that infringes on that patent; once the term expires, it may not be renewed and the design patent ceases to receive protection in US courts.

Both novel fonts and computer icons can be covered by design patents. Icons are only covered, however, when they are displayed on a computer screen, thus making them part of an article of manufacture with practical utility. Screen layouts can also be protected with design patents.

In China, Canada, Japan, South Africa, and the United States, a design patent application is not published and is kept secret until granted.