Contrary to popular culture, patents are not limited to the functional, utilitarian, or scientific aspects of a product. In fact, design patents, although often overlooked, can be a tremendous, cost-effective asset to many companies IP portfolios. Despite the fact that design patents last only fourteen years from the date of issuance, they can provide businesses with invaluable time to build their products and brands at a relatively low cost. Indeed, design patents provide a number of strategic advantages: (1) the great majority of design patent applications are granted and their cost is relatively low; (2) few design patents have been invalidated in recent years; and (3) design patents provide valuable flexibility for patentees seeking to exploit proprietary rights.
Design patents protect the ornamental design of an “article of manufacture.” 35 U.S.C. § 171. A design patent can be awarded for the “visual characteristics” of an article’s design when the design is novel, non-obvious, and ornamental. Design patents can cover everything from computer screen shots to tennis shoes and, for the reasons discussed below, can be important assets. Last year, the USPTO issued Design Pat. No. D599,372 to Google for its familiar "ornamental design for a graphical user interface."
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