Understanding Design and Utility Patents

A design patent protects only the ornamental appearance of an invention, not its utilitarian features. A utility patent would protect the way an article is used and works. It can be very confusing to understand the difference between a design patent and other types of intellectual property.

Understanding Utility Patents

It can get tricky because while design and utility patents provide separate types of protection, the utility and ornamentally of an invention are not easily separable. Inventions have both functional and ornamental characteristics and you can apply for both a design and a utility patent for the same invention. Moreover, if the design does provide utility for an invention (for example; the ergonomic shape design of a keyboard makes it useful as an invention that provides comfort and reduces carpal tunnel syndrome) then you would apply for a utility patent to protect the design.

Understanding Copyrights

Design patents protect the novel ornamental features of a utilitarian invention. Copyrights can also protect things that are ornamental, however, copyrights do not have to protect useful things, for example, a fine art painting or sculpture.

Understanding Trademarks

Design patents can be filed for the same subject matter protected by a trademark. However, two different sets of laws apply to patents and trademarks. For example, if the shape of a keyboard was protected by a design patent then anybody copying your shape would be infringing upon your patent rights. If the shape of your keyboard was trademark registered, anybody copying your keyboard shape and causing confusion for consumers (i.e. causing you to lose sales) would be infringing upon on your trademark.

Legal Definition of "Design"

According to the USPTO: A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture.

The Difference Between the Invention and the Design

An ornamental design may be embodied in the entire invention or only a part of the invention. The design could be ornamentation applied to the surface of an invention. Note: When preparing your design patent application and creating your patent drawings; if a design is just surface ornamentation, it must be shown applied to an article in the patent drawings, and the article must be shown in broken lines, as it forms no part of the claimed design.

Be Aware

There is a big difference between a design and utility patent, realize that a design patent may not give you the protection desired. An unscrupulous invention promotion company may mislead you in this way.