The importance of design patents


The recent and historic Apple iPhone lawsuit against Samsung has thrown the technological spotlight onto intellectual property. This case not only highlights the competitive tension between Apple,Samsung and the entire mobile device industry, but it also forces recognition of a much less common form of IP, known as the “design patent.”

Design patents are often overlooked despite the fact that they have been available to innovators for more than 150 years. These types of patents focus on the appearance of an object, rather than the way it works. The designs are created with aesthetic purposes in mind, and they specifically protect an object’s shape, surface treatment and color, or any combination of the three. Design patents are an invaluable company asset for a wide variety of industries since they protect iconic designs ranging from Apple’s iPhone graphics to Aviator Ray-Ban sunglasses to the original glass Coca-Cola bottle.

Design patents are a cost-effective mechanism to add value to a company and combat the counterfeiting of products. The typical cost for obtaining a design patent is anywhere from $2,000 to $4,000. For a company whose long-term goal is to sell its technology in the future, a stock-pile of design patents are tangible assets that, in my experience, can significantly increase the selling price. But the timeframe of that value is limited to the 14-year term of the design patent itself. Design patents also can be effective tools to expand legal rights and remedies against a copyist of a company’s technology. Patent law allows the design patent owner to collect as damages the total profits of the infringer of those patents.

When hearing the words “design patent,” many think of designs of chairs, bottles, shirts, shoes—anything that you can actually touch and feel. But today’s electronic world offers opportunities for design patent protection in ways most companies overlook. A design patent can protect the visual qualities of software-generated icons, the imagery associated with various graphical user interfaces and other visual elements, including aspects of animations, or the virtual environment of a company’s product or website. These designs generally are called “virtual designs.” In its design patent lawsuit against Samsung, Apple seeks to protect certain device designs and virtual designs, including the ones in the below graphic:

Virtual designs are embodied in a display, usually an electronic screen display. These designs help define companies by playing a great role in the look and feel of a company’s respective products. Covering icons as well as text fonts, a graphical user interface has a scope of protection beyond even the very devices with which they are typically associated. As examples, well known virtual designs include Microsoft’s four-tile design for its Windows home screen, and Google Map’s pin locator icon.

A design patent application is straightforward to prepare, yet it needs to be very specific as it relates to the object’s shape, surface treatment and/or color, as shown in Pepsi’s Design Patent No. D617,803 below:

A company’s sophisticated visual elements in its computer user interfaces and the use of innovative individual icons or visual cues potentially create great value. For these designs, traditional methods of trademark and copyright protection have fallen short, at least in my opinion. But the design patent has sharp teeth that leave a lasting bite mark, as Samsung is finding out in its legal battles with Apple.

Greg Vogler is one of the co-founders of McAndrews, Held & Malloy. He focuses on patent, trade secret and trademark litigation, as well as IP due diligence related to acquisitions and mergers. He has argued over 10 times before the Court of Appeals for the Federal Circuit, and on February 5, 2013, he obtained a $70 million jury verdict for infringement of a surgical irrigator patent on behalf of Stryker Corporation against Zimmer Holdings, Inc. in Michigan. Greg can be reached at

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