Should you apply for a design or utility patent? It’s time to ask the patent attorney! In Patent Home FAQ #16 Vin LoTempio helps you decide which patent to choose.
In most circumstance a utility patent gives broader protection than a design patent. However that is not always the case. A utility patent protects the use and function of the product. Whereas, a design patent protects the aesthetic look of the product.
I often use the Coca Cola ® bottle as an example of all intellectual property (patent, trademark, copyright and trade secret), but for this discussion we will limit our analysis to design and utility patent. If you were the first person to invent the bottle itself you could get a patent on a container that holds a liquid. That would be a very powerful patent however bottles have been around for thousands of years! So it is not possible to get a patent on a container that holds a liquid. Design patent protection is available for a newly shaped bottle. At the grocery store you’ll see all the different shaped bottles on the shelves, there’s a good chance that each of those bottles is protected by a design patent.
If I were to mention Coca Cola ®, 7-Up® and RC Cola ® you would be able to picture in your mind what each one of those bottles looks like. Those are examples of design patents that would be very powerful If you could sell any liquid such as a perfume or a beverage in a bottle shaped like a Coca Cola® bottle, the sales of that bottle would be greater than in a generic shaped bottle.
Other examples of very strong design patents are patents for cellular phones such as the I-phone® and the design patent for a car air freshener. You probably notice air fresheners shaped as the Christmas trees for some reason the functionality and utility isn’t as important as the shape.
The problem is when new inventors come out with underdeveloped prototypes of the invention, the utility and/or function is most important. Only when it comes to time to manufacture is the design developed. However even in early development it can be determined the design can be protected if the invention can be constructed in a way that it wouldn’t work in any other shape.
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Design or utility patent?: Ask the Patent Attorney: Patent Home FAQ #16
Each frequently asked patent question is answered concisely in about a minute by Registered Patent attorney Vincent G. LoTempio.
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