I have talked about design patents in the past, such as my entry on “Jet powered surfboard”. A US design patent covers the ornamental design for an object having practical utility. An object with a design that is substantially similar to the design claimed in a design patent cannot be made, used, copied or imported into the United States. The copy does not have to be exact for the patent to be infringed. It only has to be substantially similar.
These are the patents that Apple and Samsung have been using to fight each other. They have nothing much to do with real features or technology, just about how the look and feel. I have also highlighted other stupid design patents such as the ones recently issued to Apple “more patent abuse”
In august of this year congress spent time changing the law in what they call a unification with the rest of the world and the creation of a patent law treaty. This change does several things. First it extends the term of the patent from 14 to 15 years. It also makes the patents international, such that a design patent issued in say China can become a US design patent if requested. This is bound to overload an already ineffective patent office because it does not seem that additional funds were provided for them to implement these new demands.
So, why would companies want to use design patents? One crazy reason is that if infringed, a court must award damages based on the value of the whole invention, not just a patented feature. Another crazy difference is that a utility patent can only cover one invention, meaning that a separate patent has to be filed for each patentable feature. With a design patent up to 100 different designs can be included in a single filing.
Did you know that an entry level patent examiner makes $42,000 - and they expect to get intelligent human beings for that?Brian Bailey
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