First of all, thank you to Dan for inviting me to be a guest blogger this month. I’ll be taking this opportunity to talk about my favorite topic, design patents.
Ever since the jury returned its blockbuster verdict in Apple v. Samsung last summer, design patents have been enjoying an unusual amount of attention—both in the media and in academia. But there is still a lot of misinformation out there.
So while I’m here, I’d like to address some design patent myths that I've encountered in the course of my research. Some of these myths are widespread; others are less common but raise interesting issues. Some are truly myths; in other cases, I’ll use the word “myth” more loosely. But before I dive into the myths, a bit of background might be helpful.
Under the current statute, “any new, original and ornamental design for an article of manufacture” can be patented if it satisfies the general requirements for patentability, such as novelty and nonobviousness. Like other types of patents, design patents do not arise automatically; they must be granted by the U.S. Patent and Trademark Office following substantive examination.
One key difference between design patents and other types of patents is the nature of the claims. While technological inventions are claimed using words, designs are claimed using pictures. Specifically, solid lines are used to show what portion(s) of the design is claimed; broken lines can be used to show unclaimed “environmental” matter or boundaries. (If you're interested in more details, here is a slightly longer discussion.)
Design patents have been issued for a wide range of designs. Here are just a few examples. First, here is the drawing from D11,023, which was granted to Auguste Bartholdi in 1879 for Liberty Enlightening the World (a/k/a the Statue of Liberty):
Finally, here are some of the drawings from D283,037, issued Hasbro in the 1986 for a classic My Little Pony toy:
(For the record, I don’t know why Hasbro decided to omit the manes and tails entirely, instead of showing them in broken lines.)
In my next post, I’ll address one of the biggest, most enduring myths about design patents. In the meantime, if you have questions about design patents or have a myth (or other topic) you’d like me to address during my time here in the Lounge, please shoot me an email or to leave a note in the comments.