A Design Patent and a Utility Patent

By Dan Swayze

A “utility patent” protects a device including the function of the device and the working of the device. In contrast a “design patent” protects the device appearance.

One of these patents does not exclude the other because a utility application can be based on the function of the device, and a design application may be based on the appearance of the same device. It can be said that a design application protects the way the device looks. By the appearance of the device, what is generally meant is the ornamental appearance of the device. One example is an automobile. The curves and shape may constitute the ornamental appearance of the automobile and may be the subject of a design application. In addition, the automobile may have a utility application on new features such as brakes.

At times, the difference may be difficult to discern. The utility patent may be obtained on a device based upon the utility of the device and ornamental appearance of the device. The curves and shape may affect the function of the automobile and may be the subject of a utility patent.

A design application is based upon what is shown in the drawings. If the drawings do not show specific features, these features cannot be part of the design patent. Consequently, it is advantageous to use an experienced patent attorney in preparing your design application.

Utility and design applications provide separate protection. The utility and ornamentally of a device may not easily separable. Generally, the device may include both functional characteristics and ornamental characteristics.

The statue, namely 35 USC section 171, states that a device that is controlled primarily by the function of the article lacks ornamentally and is not proper statutory subject matter for a design application. Specifically, if the device has no unique or distinctive shape or appearance to the device, not dictated by the function that it performs, the design of the device lacks ornamentally, and a design patent is not available for the device. In addition, the design must be original to the device. As a consequence, a design that represents a well-known or naturally occurring object or person is not original as required by the statute. Furthermore, if the design may be considered offensive to any race, religion, sex, ethnic group, or nationality, a design application will be rejected.

Utility patents are valid from 20 years from the filing date, but design patents are valid for 14 years.

Utility patents require the payment of maintenance fees while design patents do not require maintenance fees.

Utility patents may have a number of claims, but a design patent may have only one claim.

Utility patents may enjoy the priority based upon the Patent Cooperation Treaty, but the design patent may claim no such priority.

Foreign priority for a utility patent is one year from the date of filing, but the period is only six months for design patents.

Wilson Daniel Swayze, Jr is the patent attorney from the Law Office of Daniel Swayze, Jr

http://www.patent-application.us

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