February 27, 2017
Originally posted 2018-11-19 11:21:25
By Eliana Rocchi | amdlawgroup.com
Edited by Aurelia Mitchell Durant
When you seek a patent for your invention you should know that the “classic” type of patent, called a “utility patent”, is aimed to protect the invention’s functional and structural features. If you also want to protect your invention’s visual characteristics, like its shape or its decoration, you might need a design patent. In fact, the appearance of your invention will not be covered by a utility patent if it is not functional to the working of the invention itself–if it only serves as just an ornamental purpose.
An ornamental feature though, as a creative design, could also possess all the characteristics to be granted copyright protection. What kind of protection should be chosen in such a case? In order to decide that it is important to compare the differences between the two kinds of protection.
The first important difference is that the copyright automatically rises upon the creation of a work of art, so you do not need to file a “copyright application” to obtain protection: you are already entitled to it as the author of the work. You may still want to register your copyrighted work in order to obtain some additional benefits, such as giving notice to the public that you own the copyright and making it easier to transfer it, or the ability to bring a lawsuit in court against an infringer of your copyright. The registration process, typically, takes just a few months and costs about $60. On the other hand, a design patent is acquired through a long and expensive process (it can take more than a year and more than $10,000) that starts with the filing of an application and does not have a certain outcome.
In case of infringement, though, a design patent could be easier to defend than a copyright. This is because while the main requirement for obtaining a design patent is a novelty, for copyright it is just originality. That means that if you own a copyright it will be your burden to prove that the infringer did not create the work independently, but instead had knowledge of your work and copied it. If you own a design patent you will just need to show that the infringer’s work is identical to yours: a much easier proof to give.
A third difference should be taken into consideration: copyright usually lasts for the life of the author plus 70 years; a design patent usually lasts for 14 years from the date they are granted.
A final note: in the cases in which copyright protection and design patent protection may overlap, the author is not always required to elect between one or the other. Sometimes the author can get both. In fact, the Patent Office, under certain conditions, will permit the inclusion of a copyright notice in a design patent application, which will lead to double protection.