Our Promise: Design Patent Filing Includes
Responses to Office Actions (Rejections)
Items which may be Protected by Design Patents:
- Clothing and apparel (shoes, sneakers, hats, scarves, shirts, pants, belts, jewelry, purses)
- Furniture (chairs, sofas, tables)
- Kitchen utensils Graphical User Interface (GUI) elements (e.g., icons, virtual characters)
- Car accessories (e.g., entire car design, fenders, bumpers, roll bars) Electronic devices (e.g., remote controls, Smartphones, computer equipment
- Toys and stuffed animals
- Medical devices and instruments (e.g., bone screws, dialysis machines, implants)
- Numerous other articles:
Typically, a client’s chances of securing a design patent are good so long as their design is proprietary. Instead of asking whether an item can be protected via a design patent application, the better question is: “what cannot be protected?” Elements that are subject to other forms of intellectual property protection is one point to consider, in which case one or multiple appropriate forms of intellectual property protection can be sought.
While copyrights come into play for artistic works (e.g., a painting), some items which a client may want to protect with a copyright can also be protected with a design patent, such as an artistic design on a piece of clothing, see, e.g., US D838938:
In the above shirt, which is subject to an issued design patent, the emoji and/or pattern may be protectable with a Copyright registration as well.
Typically obvious elements which are not protected by a design patent are items which are trademarked (e.g., logo and slogan). Other items for which some consideration should be given before proceeding with a design patent application are items which are solely functional in nature. See, for example, High Point Design LLC v. Buyers Direct, Inc., 730 F.3d 1301 (Fed. Cir. 2013), in which the court stated that a design patent can be invalid if the claimed design is “primarily functional” rather than “primarily ornamental.” Often times, functional items can have design features which can be created in different ways – this is one argument that the item is not primarily functional (i.e., there are multiple ways of designing a given feature(s)). Of course, if the item is valuable to the client after market testing, filing the design application may be a good idea regardless of the risk of rejection or patent invalidation down the road.