8. What are the specific requirements for a creation to receive design patent protection?
Design patents apply to “the visual ornamental characteristics embodied in, or applied to, an article of manufacture.” So, the subject matter of a design patent application must be the ornamental characteristics applied to a physical item. More specifically, the design patent protects non-functional, purely form (shape or configuration) and aesthetic aspects of a patentable subject matter. The item must still meet the subject-matter requirements for a patent, as the design must be inseparable from the item to which it is attached. The design of the creation must also meet “novelty” and “non-obviousness” requirements. The design does not have to have “utility” (usefulness), as the protected creation is ornamental rather than functional in nature.
• Discussion: How do you feel about the ability to protect an ornamental design through patent? How are designs unique in nature from creations with function or utility? Are the objectives behind protecting these rights similar? How are they different?
• Practice Question: Leni is a seamstress. She has been brainstorming some unique dresses for infants and young girls. She is scared to let anyone see her designs for fear that they will be copied. If Leni wants to commercialize her designs, what type of intellectual property protections should she pursue and what will she have to demonstrate to achieve that protection?