Wednesday, April 04, 2007

A Denver Colorado Patent Attorney Answers FAQs: Part 5

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5. What is the Difference between a Design Patent and a Utility Patent?

A utility patent is typically what comes to the mind of most people when they think of a patent. Utility patents can be obtained for new and useful processes, machines, articles of manufacture or compositions of matter. Utility patents may not be obtained for: printed matter (usually protected with a copyright); naturally occurring articles; scientific principles, mathematical laws; and “inoperative” inventions, such as perpetual motion machines that are incapable of achieving a useful result.

Unless otherwise stated, throughout this web site when we use the term “patent” and “patent application”, we are referring to a utility patent and utility patent application respectively.

Art is generally not within the purview of utility patents. Sculpture, paintings, and music are not considered to possess utility (or usefulness) and are, accordingly, not patentable. Creative works are typically protected through copyright. Patent law does overlap with copyright concerning design patents. To learn more about copyright law, click here.

Design patents protect the novel, nonobvious ornamental designs of articles of manufacture. In other words, the design patent protects the way an article looks. Unlike utility patents, there is no requirement that the ornamental design be useful. Rather, a design patent cannot protect the features of an article of manufacture that are dictated wholly by functionality. It is not uncommon to apply for and receive both a utility patent and a design patent for the same article provided the novelty and nonobviousness of the article resides in both its utility and its ornamental appearance.

As mentioned above, sculpture is protectable through copyright, but since it is an article of manufacture, it is also protectable through a design patent. Because registered copyrights are inexpensive to obtain when compared to design patents (typically about $300 versus about $1000-2000) and considering the much shorter term of a design patent (14 years), it is rarely prudent for a sculptor to apply for and obtain a design patent when a copyright will provide adequate protection. Furthermore, since copyright protection actually applies to a creative work immediately upon its creation, the sculptor need not even apply for a registered copyright, although by registering the copyright, the sculptor does gain certain additional avenues of legal recourse against those who copy his work.

Copyrights are not available, however, for articles of manufacture that are primarily functional unless the nonfunctional portion can be conceptually or actually separated from the functional elements of the article. For example, a 1.5-foot high sculpture of a person is protectable through copyright whether the sculpture stands alone or serves as the base of a table lamp. Interestingly, the lamp's design (i.e. the sculpture) would also be protectable for use in a lamp using a design patent. There is a degree of overlap between copyright and design patent protection but in general, design patents are most useful to protect the ornamental and non-functional features of an article of manufacture that possesses functionality.

Generally, a design patent by itself without an accompanying utility patent is of little use to the independent inventor. Some unscrupulous invention companies have in the past used the design patent as a way to inexpensively (for them) obtain a patent for their customers. They, however, often failed to inform the customer that the design patent only pertains to the look of the device and that a competitor could produce a similar device that has the same functionality without infringing the design patent. And if the competitor cannot produce a device having similar functionality as the design-patented device without copying the look of the device, than the design patent is probably invalid because the look of the product is not wholly ornamental but is at least partially dictated by function.

We do recommend that an inventor or company consider obtaining design protection when they intend to produce an article of manufacture themselves and the design is unique enough in their opinion that there is a concern about someone copying it. Often a design patent is a good companion to the utility patent as it further protects a particular product.

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