By protecting the non-functional aspects of the way an article looks, the design patent fills a gap between copyright protection for authors and patent protection for inventors.

United States Patent law allows inventors to obtain protection for designs on new, original and ornamental articles of manufacture. 35 U.S.C. §171. Inventors can protect their designs by obtaining design patents. The term of the design patent is fourteen years from the date of grant. 35 U.S.C. §173.

The design of an object consists of the visual characteristics embodied in or applied to an article. Since a design is manifested in appearance, the subject matter of a design application may relate to the configuration or shape of an article, to the surface ornamentation of an article, or to the combination of configuration and surface ornamentation. MPEP §1502

An inventor who obtains a design patent is protected against infringement from articles that resemble the patented design. When a court of law determines if an article is infringing it asks whether the article deceives the ordinary observer who gives attention as a purchaser usually gives. Avia Group Int'l, Inc. v. L.A. Gear Calif., Inc., 7 USPQ2d 1548 (Fed. Cir. 1988). Design patent infringement is based entirely on the patented design and does not require proof of unfair competition. L.A. Gear. Inc. v. Thom McAnn Shoe Co., 25 USPQ2d 2548 (Fed. Cir. 1988). A competitor only needs to appropriate the patentee's patented design and not the patentee's market also. Robert Harmon, Patents and the Federal Circuit 4th ed. p.63.

Design patents can be distinguished from utility patents which are more common and familiar to people. Utility patents protect functional aspects whereas design patents protect ornamental aspects of a product. To describe the distinction between the two types of patents a "utility patent" generally protects the way an article is used and works (35 U.S.C. §101) while a "design patent" generally protects the way an article looks (35 U.S.C. §171).

The patentability requirements for utility patents are also somewhat different from that of design patents. Utility patents have the requirements of nonobviousness, utility and novelty, while design patents substitute the requirements of novelty, ornamentality, and non-obviousness. Design novelty is usually determined by the "ordinary observer" test. See In re Bartlett, 133 USPQ 204 (CCPA 1962). Generally an article is ornamental if it "the product of artistic skill and artistic conception." Bisscraft of Hollywood v. Union Plastics Co., 131 USPQ 55 (2nd Cir. 1961). Nonobviousness of design patents is usually determined based on that of the design with ordinary skill pertinent in the art. In re Borden, 39 USPQ2d 1524 (Fed. Cir. 1996).

The manner in which a design patent is claimed also differs from that of a utility patent. While a utility patent normally has multiple claims, design patents only have a single claim and designs that have an independent and distinct basis must be filed in a separate application.

Along with the single claim the design patent has a drawing of the design of the article of manufacture. The drawing of the invention provides the disclosure and definiteness of the design patent and is probably the most important element of the design patent application. The drawing or photograph provides the visual disclosure of the claim so the drawing must be clear and include all the details of the design.

Although a knowledgeable inventor may prosecute his or her own design patent application it is usually recommended that an inventor use an attorney or patent agent in order to secure the broadest protection for his or her invention. It is often recommended also that a professional draftsperson may be used to prepare drawings of the design.

More information on design patents can be found at the United States Patent and Trademark Office website at http://www.uspto.gov or contact the author at 212-302-8989.