Adam D. Stallard, Esquire
Registered United States Patent Attorney

A patent is a legal monopoly on a specific utility, plant, or design for a set of years, as determined by federal statute, giving the inventor the power to exclude others from making, using, or selling her invention. Patents are granted by the U.S. Patent & Trademark Office (USPTO) via the patent application process (i.e. patent prosecution). U.S. patents come in three main flavors: utility, plant, and design. A utility patent is a patent on a new or improved invention of functionality. Utility patents are the most common type of patents, and utility patents are what most people think of when they hear the word “patent.” Utility patents protect the functionality or “utility” of an invention. A plant patent is a patent on a newly cultivated asexual flower or plant. Plant patents are not very common, and they are mainly sought by members of flowering plant industry. Design patents are patents on new and unique industrial designs for any type of product. Although design patents have a mixed history of importance and relevance, they are quickly picking up steam in a wide variety of niche product markets.

Legally speaking, a design patent is a patent on the “ornamental design” of a functional product, whereas a utility patent is a patent on the functionality of the product. Classically, design patents represented a second-class tier of product patents, because the design patent is limited in its scope by the specific design (being a complete set of patent drawings) submitted to the USPTO in the design patent application. As we are immersed in the early 21st century advent of extensive intellectual property value and growth, design patents are quickly catching on in various industries, from textiles and web design, to tool and die and smartphones. If it can be designed, it likely can be patented. Once patented, value is added to the product, no matter its scope of protection. The words “patented” and “patent pending” add intrinsic value to any product, even if the patent owner chooses not to enforce her patent rights through patent infringement litigation (patent infringement litigation is the set of legal actions brought by a patent owner in order to stop market competitors from making and selling an infringing product). The recent global smartphone/tablet litigation wars between Apple and Samsung drew new light on the worlds of U.S. design patents and international design protection.

Unique designs are all around us. Design is in the eye of the beholder. A new tool bit invented and designed by a tool and die company likely exhibits the requisite ornamental uniqueness that warrants pursuing a design patent. A uniquely designed software app logo, or even a newly designed internet website, would likely qualify (FYI: Google owns an infamous design patent on its infamous browser screen). A newly designed plastic tray used for vial transport in a pharmaceutical production plant may qualify for design patent protection. An innovative lighted Christmas tree design, being unique from other lighted Christmas trees, probably can be successfully patented. Compared to a utility patent application, which requires a significant financial investment on the part of the inventor, a design patent application is relatively quick and inexpensive to pursue, at little risk. Moreover, the filing of a design patent application immediately adds value to any uniquely designed product (i.e. a product is “patent pending” upon filing the patent application). Once the patent application is accepted, and a patent on the product is issued by the USPTO, the product becomes patented and is assigned a patent number. When it comes to chasing design patents on an infinite amount of unique product designs, the question is simple: why not?

THIS ARTICLE DOES NOT CONSTITUTE LEGAL ADVICE. This blog post is written and published for informational and educational purposes only and is not intended to constitute legal advice. Every client’s case is different, and a general synopsis of an area of law can be neither complete in its scope, nor specifically tailored to the unique facts of an individual’s case. If you need legal advice, you should contact an attorney regarding your specific factual and legal circumstances.