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Design patents protect a product’s distinctive “look” or design against its being copied or
counterfeited. They may be granted for many different types of products, including automobiles,
glassware, furniture, and, most recently in the news, the shape of a smartphone. They also may
cover designs for non-tangible products such as icons or other images on a computer screen.

Design patents protect only the ornamental or aesthetic features of a product, and not any
features related to the function of the product (novel and original functional aspects of a product
may be covered by utility patents).

  • Design patents usually cost significantly less and take less time to obtain than utility patents
  • A design patent application typically consists only of a specification, a single claim describing
    the claimed design, and a set of drawings that illustrate the design.
  • Design patents last for a term of 14 years.

Design patents are similar to trade dress rights. An ornamental design that is eligible for a design
patent also may qualify as a trade dress if that design is used to identify the source of particular
goods.

  • The difference between these two types of intellectual property lies in the theories of
    recovery that their owner may pursue. The particular design of a woman’s shoe, for
    example, also may indicate and promote the designer himself as the source of the shoe. In
    that instance, the designer could sue a knock-off competitor under both patent law (for
    manufacturing or selling shoes that infringe the patented design) and on a trade dress
    theory (for confusing consumers by passing off the knock-off shoes as being made by the
    original designer).
  • Design patents are thus an effective and efficient means to combat knock-off products that
    can be easily identified by visual inspection alone.”

To determine infringement of a design patent, courts look to the “ordinary observer,” and ask
whether that person, who is assumed to be familiar with the prior art related to the product at
issue, believes that the accused design is the same as the patented design.

  • Damages for infringement of design patents can be substantial, depending on the facts of a
    particular case, as the law specifically authorizes an award of “the [infringer’s] total profit”
    from the “article of manufacture” bearing the patented design. 35 U.S.C. § 289.
  • The key issue in determining damages for infringement of design patents often will be
    identifying what precisely constitutes the “article of manufacture,” as that term can
    encompass a product sold to consumers or, more narrowly, only a component of that overall
    product—even where the component may not be purchased separately.

Design patents are an important and useful tool for companies seeking to protect their products and
their share of the markets in which they are sold.

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