A design patent can be granted to any inventor in the United States who creates a new and unique ornamental design for a manufactured item. The definition of a design patent covers the visual ornamentation of a manufactured item.
A design is related to the appearance of the item only, as it relates to configuration, shape, surface appearance or a combination of these factors. It does not cover the functionality of the invention, which is only covered by utility patents.
In order to qualify for a design patent, the design of the surface ornamentation must be inseparable from the item that it is applied to and cannot exist on its own. Also, the surface ornamentation must be in a definite pattern which is applied to a manufactured item.
The US Patent and Trademark Office examines applications for design patents and grants them on inventions which are entitled to receive a patent.
A design patent is considered by intellectual property lawyers to be a weaker form of patent, and therefore they are only the best choice in a limited number of situations. However, they can still be a useful tool in an IP arsenal, especially in cases where overlapping patent protection is desired.
A design patent can be a great addition to a portfolio of intellectual property, especially following the 2008 decision by a US Court of Appeals that made significant changes to the infringement test for design patents.
They chose to adopt the “ordinary observer” test, which had the practical effect of adding value to design patents because it makes proving infringement easier.
A design patent is particularly desirable in cases where a utility patent has already been filed on a given invention. Nonetheless, some inventors choose largely to apply for and obtain a utility patent only, while foregoing the costs and hassle of a design patent, and this is completely fine as well.
