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The zipper in Arc’Teryx’s design patent has two sections while the zipper of Westcomb’s jacket has three sections (see Figure 5 below). Arc’Teryx (the patent owner) did not include variants of its offset zipper in its design patent. Westcomb (the defendant) was therefore able to utilize a design that looked different to avoid design patent infringement. In some cases, as in Arc’Teryx’s, it is important to protect variations of a design for broader protection even if those variants are not being sold. Design patent applications have a higher approval rate than utility patent applications.
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The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter, which the applicant regards as his invention. "The patent or application file contains a least one drawing executed in color. Copies of this patent or patent application publication with color drawing(s) will be provided by the Office upon request and payment of the necessary fee." In addition, the filing fee, search fee, and examination fee are also required. If applicant is a small entity, (an independent inventor, a small business concern, or a non-profit organization), these fees are reduced by half.
The Figure Descriptions
When more details are added to the drawings, a third-party would have to incorporate all those features to infringe against the design patent. For example, in the case of Arc’Teryx Equip, Inc. v. Westcomb Outerwear, Inc.,11 Arc’Teryx sued Westcomb for patent infringement on its patented jacket. However, the zipper on Westcomb’s jacket did not come up the center and up under the chin but instead was offset to come up to the side of the chin. The District Court held that the defendant (Westcomb) did not infringe on the design shown in Arc’Teryx’s design patent based on the visual differences between the zipper designs of the two jackets.
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Plant Patents
It is essential that the applicant present a set of drawings (or photographs) of the highest quality which conform to the rules and standards which are reproduced in this guide. Changes to these drawings after the application has been filed, may introduce new matter, which is not permitted by law (35 U.S.C. 132). It is in applicant's best interest to ensure that the drawing disclosure is clear and complete prior to filing the application, since an incomplete or poorly prepared drawing may result in a fatally defective disclosure which cannot become a patent. It is recommended that applicant retain the services of a professional draftsperson who specializes in preparing design patent drawings. Examples of acceptable drawings and drawing disclosures are included in this Guide so that applicant will have some idea of what is required and can prepare the drawings accordingly. Once the application is examined, the USPTO will issue one or a series of office actions detailing additional information required and/or substantive issues affecting patentability.
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It is valuable to obtain both utility and design patents on the same product, as doing so makes it more difficult for a competitor to develop a similar product that does not infringe at least one type of patent. To mitigate such easy design arounds, multiple versions (i.e., embodiments) of the same product can be incorporated into a single design patent application. The design patent application could then provide protection for alternative embodiments and variants of the product. In the case of the jacket above, the inventor could have included different configurations of the multi-section zipper and secured more patents on similar designs to make it more difficult to design around a portfolio of design patents.
Publication of application
A USPTO patent examiner may issue several different types of official letters about your application, including an office action. Carefully read USPTO correspondence to understand the type of response needed and the time period for filing it. The other invention may become the subject of a separate application that, if filed while the first application is pending, will be entitled to the benefit of that application’s filing date. An examiner may restrict the application to one invention before further action.
Building brand identity with trademarks and industrial designs
If a model is not needed anymore, it may be returned to you, but at your expense. Specimens of the plant variety, and its flower or fruit, should not be submitted unless specifically requested by the examiner. The claim shall be in formal terms to the new and distinct variety of the specified plant as described and illustrated, and may also recite the principal distinguishing characteristics. An example of a proper claim would be "[a] new and distinct variety of hybrid tea rose plant, substantially as illustrated and described herein." Where color is a distinctive feature of the plant, it should be identified by a designated color as given by a recognized color dictionary. Where the plant originated as a newly found seedling, the conditions (cultivation, environment, etc.) under which the seedling was found growing must be fully described, to establish it was not found in an uncultivated state.
Those not recognized by the USPTO for this practice are prohibited from representing inventors before the agency. The Public Search Facility, also at USPTO headquarters in Alexandria, is where you may search for and examine U.S. patents granted since 1790 using state-of-the-art technology. Publications, manuals, online databases, and other search aids are available. Patent evaluations give the Goldstein Team a chance to collect the right information about your idea. We use this information to inform our research, which in turn helps us to recommend the best course of action for you.
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The most important element of the design patent application is a drawing disclosure. The drawing disclosure illustrates the design with either a drawing or a black and white photograph of the claimed design. Unlike utility patents, which last 20 years and protect functionality, design patents last 14 or 15 years and don't require maintenance fees.
Alternate positions of a design component, illustrated by full and broken lines in the same view are not permitted in a design drawing. Photographs and ink drawings are not permitted to be combined as formal drawings in one application. Photographs submitted in lieu of ink drawings in design patent applications must not disclose environmental structure but must be limited to the design claimed for the article. Of primary importance in a design patent application is the drawing disclosure, which illustrates the design being claimed. Unlike a utility application, where the "claim" describes the invention in a lengthy written explanation, the claim in a design patent application protects the overall visual appearance of the design, "described" in the drawings.
Any proposed amendment to the description and claims in patents involved in reexamination proceedings must be made in accordance with § 1.530. Any amendment to the description and claims in reissue applications must be made in accordance with § 1.173. Each section of an amendment document (e.g., amendment to the claims, amendme nt to the specification, replacement drawings, and remarks) must begin on a separate sheet.
A description in the specification must explain that the appearance of any portion of the article between the break lines forms no part of the claimed design. Design patents may not be the proper form of protection because they are easy to circumvent. Changing an invention’s appearance could allow the accused infringer to avoid design patent infringement liability.
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