As mentioned in this post, a “design patent” is available for anyone who develops an original ornamental design for a useful article of manufacture. While utility patents protect functional aspects of technology, design patents protect the appearance of an article of manufacture or material portion of the article. The standard of novelty is whether the prior art (i.e., existing designs, knowledge, descriptions, patents or other public information), contains an article having substantially the same appearance as viewed by an ordinary observer.
Protecting Online Goods Through Patents
For the online entrepreneur, design patents may be significant in order to protect their internationally advertised goods. As in the case of utility patents, a product sold via the Internet may be afforded design patent protection. For example, a manufacturer of shoes or chairs might consider obtaining a design patent for the aesthetic appearance of the article.
Perhaps more importantly for providers of e-commerce is the role of design patents for software-related ornamentation. While having a somewhat tumultuous history, it is now clear that computer-generated icons are “designs” within the meaning of the statute, but must be embodied in an article of manufacture to satisfy the statute. The Manual of Patent Examining Procedure states that the icon can be embodied in an article of manufacture by visually illustrating the icon as part of a computer screen, monitor, other display panel or a portion thereof.
Protecting Web Pages
While less clear, a graphical screen image or web page could also be the subject of a design patent. Copyright law has traditionally been the manner of protecting screen images, but a screen image providing an operable interface could be construed as an uncopyrightable “method of operation.” Design patent protection may, therefore, be a more viable option for these types of screen images, although it would be prudent to also register them as copyrighted material. It is also important to have appropriate written agreements with employees and independent contractors to make sure that inventions and other intellectual property, including copyright, belongs to the company and not the individual or outside vendor. See this post on Work-Made-For-Hire.