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Design Patents

Jim Ruttler, Patent Attorney

Posted Monday, November 30, 2009 by Jim Ruttler

Design patents protect new and non-obvious ornamental aspects of existing articles of manufacture. For example, design patents may protect a new shape of sunglasses, an artistic imprint on a lamp base, or even a new font face. Google has even recently obtained design patent protection for the layout of their homepage.

One issue with design patents was recently reviewed in a research paper titled, “Overcoming the ‘Impossible Issue’ of Non-obviousness in Design Patents” by University of Pittsburgh Law Professor Janice M. Mueller and Daniel H. Bream. In this paper, the authors address the difficulty of determining what constitutes a non-obvious design. Non-obviousness is a principle borrowed from utility patents, which essentially requires a significant advance over the existing art as viewed from the perspective of one skilled in art for which the invention relates. Within the field of design patents, the authors argue that non-obviousness is not a fitting requirement for ornamental designs for a number of reasons including the subjective nature of designs, the difficulty of determining what constitutes and ordinary designer, and the difficulty of distinguishing between obvious and non-obvious design improvements from the perspective of an ordinary designer. One solution offered would be to determine non-obviousness from the perspective of an ordinary observer.

From a practical standpoint, the Patent Office doesn’t generally issue rejections for design patents based on obviousness unless designs are substantially similar, perhaps proving the authors point. Design patents often sail through the patent office without receiving any rejections so long as there is some artistic difference between the applied for design and the existing art.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1505384

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