Learn what is a design patent and how it differs from a utility patent.

1. DESIGN Patents AGRAWAL LAW FIRM, LLC 8333 OLIVE BOULEVARD ST. LOUIS, MISSOURI 63132 314-994-7604 © 2010 AGRAWAL LAW FIRM, LLC. ALL RIGHTS RESERVED.

2. AGRAWAL LAW FIRMDESIGN PATENT DESIGN PATENTS Protect the ornamental design of an object Think of it like a 3D trademark Only ONE CLAIM – “ An ornamental design for a TBD, as shown and described:” Must meet all requirements of a patent: new, useful, unobvious © 2010 AGRAWAL LAW FIRM, LLC. ALL RIGHTS RESERVED.

3. © 2010 AGRAWAL LAW FIRM, LLC. ALL RIGHTS RESERVED.

4. AGRAWAL LAW FIRMDESIGN PATENT ADVANTAGES OF DESIGN PATENTS Have a 90% allowance Rate (from 2005-2009) Usually only takes ONE year to issue Easier and cheaper to prosecute a design patent than to register a product design as trade dress Design patents remain in force for 14 years from issue date Drawings are the specification and define the scope of the claim © 2010 AGRAWAL LAW FIRM, LLC. ALL RIGHTS RESERVED.

5. AGRAWAL LAW FIRMDESIGN PATENT HINTS Good idea to file a Copyright and Trademark for the design as well as a Design patent For Design Patents, the design must be novel and unobvious For Trademark, the mark must must help distinguish goods and services in the minds of consumers For Copyright, the design must be original © 2010 AGRAWAL LAW FIRM, LLC. ALL RIGHTS RESERVED.

6. AGRAWAL LAW FIRMDESIGN PATENT Dashed or Ghost lines in a Design patent mean that it is not being claimed Patent would be infringed by anyone using same layout even if replaced their mark for the “Google” mark. Note bottom of design patent has circle-c, for copyright. Google also claims TM protection for parts of the layout or the layout as a whole © 2010 AGRAWAL LAW FIRM, LLC. ALL RIGHTS RESERVED.

7. AGRAWAL LAW FIRMDESIGN PATENT Infringement (Egyptian Goddess v. Swisa, Inc., Fed. Cir., 2008 en banc) Court held that “ordinary observer” test is only test to determine if a design patent has been infringed The similarity of the design is considered from the perspective of an ordinary observer who is familiar with the art. Cases will turn on technical points of similarity © 2010 AGRAWAL LAW FIRM, LLC. ALL RIGHTS RESERVED.

8. AGRAWAL LAW FIRMDESIGN PATENT Example: Nike Design Patent Infringement For past decade Nike has been top 10 owners of issued design patents. Design patents play a more important role in protecting Nike products than its TM “swoosh”. © 2010 AGRAWAL LAW FIRM, LLC. ALL RIGHTS RESERVED.