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A brief look at two types of patent protection

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

For businesses in highly competitive industries, patent protection is an important avenue for protecting valuable intellectual property from competitors. Two of the most commonly used types of patents are utility and design patents.

According to the United States Patent and Trademark Office, the most common patent is the utility patent, which protects inventions of a new and useful process, machine, manufacture or composition of matter, or new and useful improvements of these things. The holder of a utility patent is able to prevent others from making using or selling the invention for a long as twenty years, provided maintenance fees are paid. 

Design patents essentially protect the functional aspect of an invention, rather than its appearance. Because of this, it can be relatively easy to prevent competitors from infringing the patent, provided the patent is well-defined, and a patent can protect various products with different appearances, provided the inventions have the same function. Because they are more popular, utility patents may take longer to secure, so that is something to keep in mind. Often, time is of the essence in securing protection from competitors.

Design patents, by contrast, are one of the least popular types of patent protection. Design patents protect new, original and ornamental designs for items already in manufacture, so they pertain to the appearance of an invention rather than its function. The holder of a design patent is able to exclude others from making, using or selling the design for a period of 15 years. Because they only apply to an invention’s appearance, it can be easier for competitors to work around the patent. On the other hand, there are no maintenance fees for design patents, so they are cheaper than utility patents. Also, because they are not very popular, it is usually possible to obtain them more quickly.

Utility and design patents aren’t necessarily exclusive. In some cases, it is desirable to obtain both types of patents for a single invention. One area where this is seen is in smartphone manufacturing. In our next post, we’ll say more about this issue, as well as how trade secret protection can be used to cover a lot of the same ground as patent protection. 

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