In order to qualify for design patent protection, a claimed feature (or combination of features) must be primarily ornamental, not functional. In analyzing each feature, ask the following questions:
- Is the appearance of the design dictated by the use or purpose of the article?
- Does the design aspect affect the cost or quality of the article?
- Are there other functionally equivalent designs?
- Is this the best design? Would the alternate designs adversely affect the utility of the article?
- Does advertising tout particular features as being useful or utilitarian? (or a concomitant utility patent application)
- Are there elements that are not dictated by function?
If you conclude the design feature is ornamental, then you can proceed to protect it by design patent. Remember that a design patent protects the look – surface ornamentation, contour and configuration – of an article of manufacture. It does not protect the function or idea behind the product, something protected by a utility patent.
These are not mutually exclusive forms of protection and can strategically be combined to provide broad patent coverage. An experienced patent practitioner can help you develop a custom strategy to protect your valuable proprietary property and prevent copycats from usurping your market share.