A design patent is granted to an inventor who creates “any new, original and ornamental design for an article of manufacture.” The protection for a design only applies to its ornamentation, regardless of whether that ornamentation has a practical use as well. In any case where an invention has a practical use and an original ornamentation, we encourage the inventor(s) to seek both design and utility patent protection. Unlike plant and utility patents, design patents are only valid for fifteen (15) years from the filing date (increased from fourteen years of protection on May 13, 2015).
At the most basic level, any patent (utility, design, or plant) is an intellectual property right that gives its owner the legal right to exclude others from making, using, selling, offering to sell, or importing an invention using that patent for a period of time. Utility patents are typically related to inventions or discoveries of a utilitarian nature, and protect the functional aspects of the invention or discovery. In contrast, design patents are granted for the ornamental features of an invention and do not protect any functional aspects of the invention.
It’s a pity, so many developers of great new consumer products never reap the full benefits of their hard work because they delayed applying for a patent until it was too late. Protection begins as soon as a patent application is filed. Accordingly, it is crucial to file an application once an inventor conceives the product idea and definitely by the time the product reaches the final stages of development. Filing a patent application is a must before releasing a unique product on Kickstarter, Indiegogo, or other crowdfunding platforms. When preparing a budget for launching a product, it’s critical to account for the cost of acquiring a patent, which includes hiring an experienced intellectual property attorney with a track record of success.
File history estoppel is, like the doctrine of equivalents, an equitable doctrine developed over the years by the federal judiciary in its consideration of patent infringement cases. File history estoppel prevents patent owners from alleging infringement (either directly or under the doctrine of equivalents) on the basis of an unclaimed element, or elements, of a patented invention, where the allegedly infringed element(s) were surrendered during patent prosecution.
The Doctrine of Equivalents is an equitable, common law, judge-made principle developed by the Federal Courts over years of litigation. This article explores some of the key cases that have defined and re-defined the Doctrine of Equivalents, including Winans v. Denmead (1853), Graver Tank & Mfg. Co. v. Linde Air Products (1950), and Warner-Jenkinson Co. v. Hilton Davis Chemical Co. (1997).
The Doctrine of Equivalents is an equitable, common law, judge-made principle developed by the Federal Courts over years of litigation. Under the doctrine, an accused product or process must practice each claim limitation or its equivalent. Where direct (or literal) patent infringement does not exist because an accused product or process fails to practice one or more claim limitations, the patent owner may still prove infringement by showing the accused product or process practices the equivalent of the patent absent claim limitations. Furthermore, the patent owner must consider equivalency at the time of infringement, not when the patent is issued.
Trade dress, like a trademark, serves to identify and distinguish sources of goods and services from each other. Trade dress encompasses non-functional aspects of physical objects such as packaging design,[i] overall product line designs,[ii] and even building designs[iii] or restaurant décor.[iv] Trade dress can be pretty straightforward but still be distinctive and recognizable to the general public, with the red wax on a Maker's Mark whiskey bottle being an example. While trade dress is protectable under federal and common law regarding trademarks, most businesses tend to focus on protecting their trademarks and brand names/logos and focus less on their trade dress, sometimes to their detriment.
Always use your trademark as an adjective and never as a noun for the good or service. For example, a brand owner should use the trademark (adjective) followed by the good or service (noun) it modifies (e.g., “APPLE computer”). Using the mark as a noun indicates the mark is a good or service rather than the source of the good or service, which is a hallmark of trademark law.
You can register a trademark with a state government, the federal government, or both. Federally registered trademarks will usually have the ® symbol used next to or in close association with the good. Trademark rights begin with use in commerce.[i],[ii] Generally, "use" means the owner must use the mark in association with particular goods, such as placing the mark on the goods or their packaging, in advertisements for the goods, or at point-of-sale displays, for example.
Trademarks, trade dress, and design patents are each exclusionary intellectual property rights that protect non-functional aspects of an owner’s business operations and product lines by giving the owner legal rights to prevent others from using them. While each of these routes to protect an owner’s intellectual property is somewhat similar and overlapping, differences exist. Each intellectual property right will be discussed below and then compared and contrasted with the other. This topic will be divided into several blog entries with part I introducing trademarks and providing a little history.
A trademark is a distinguishable word, symbol, slogan, or figure which identifies products or services from a specific source and distinguishes from products or services of other sources. Word marks in particular are evaluated on a sliding scale from most distinctive to least distinctive. More distinctive marks lend themselves to stronger trademarks, and are better candidates for registration on the Principal Register of the USPTO. The most distinctive marks are known as "inherently distinctive," as will be discussed here in greater detail.
Products imported to the United States can infringe on issued U.S. patents. Patent owners have several options for protecting their intellectual property rights, including litigation in either Federal Court or the United States International Trade Commission. We will discuss each type of litigation and its unique advantages in detail below. If a patent owner becomes aware of infringement against their patent, we advise the patent owner to take prompt action to stop the infringement.