An established new concept or invention potentially has future economic and commercial value. However, the developer of the concept (ie the inventor) may not be immediately aware of the possible financial benefits according to the invention. As abstract inventions are transformed into commercialized products or services, inventors are advised to ensure that the ideas and rights associated with the present invention are protected for a certain period of time.
Article 8 of the US Constitution provides that inventors have "exclusive" rights to their discoveries in order to promote scientific progress. The US Patent and Trademark Office ("USPTO") is a government agency that issues patents in the United States.
Design patents protect various visual characteristics of manufactured goods and cover newly invented decorative designs. It protects the appearance of the invention and is relatively inexpensive and quick to acquire patents. A design patent does not directly protect the functional features of the invention. Therefore, competitors can sometimes get over by changing the overall appearance of other protected products. In contrast, utility models protect the functional aspects of the invention. A single utility model can protect many different product variations and will be more economical in the long run.
However, circumstances may arise where the present invention has its own function or structure associated with a unique decorative design. Under these circumstances, it is possible to provide appropriate protection with a combination of both design patents and utility patents. After consulting with a patent attorney, the application can be submitted to both the patent and the utility model.
The design patent application incorporates specifications and drawings mainly incorporating drawings. This specification supplements the preamble, the illustration and the description of the single claim. The drawing contains the essence of what the design patent protects. Therefore, the drawings must be carefully prepared in accordance with the patent examination procedure (MPEP) of the USPTO. In addition, the drawing should demonstrate the ability to create and protect drawings derived from 3D models using software such as Pro-Engineer, Solid Works, CATIA.
In contrast, the utility model patent application includes abstract, background of the invention, overview of the invention, drawings, brief description thereof, a detailed description of preferred embodiments of the invention, and several claims.
Conceptual differences between design patents and practical patents are between design and utility patents, but in USPTO both types of applications face analysis of novelty and obviousness. This makes it very cautious to obtain patentability or infringement opinion before filing.
Infringement of a design right or a utility model right occurs when the exclusive right granted to the patent owner is violated. Infringement of design patents generally depends on whether the design of the accused and the patent design are substantially the same. Infringement of a utility model right is generally determined by whether literally "claims to read" the invention claimed by the patent or whether the difference between the defendant and the patented product is not substantive.
Whether or not the invention is patentable and whether it infringes is a separate but related question. Inventions that infringe a feasible patent are not patentable per se, but inventions can not be patented and there is no risk of infringing another patent (eg, all subject patents are revoked are doing). If the inventor recognizes that the product is less likely to patent, it may be prudent to declare infringement so that the patent owner does not keep time.
An inventor who is considering acquiring patent protection or an aspiring entrepreneur - wondering whether it is necessary - can take necessary precautionary measures to ensure coverage in any event You should speak to a patent attorney.
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