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When you invent a kitchen utensil, is it more common to get a design or utility patent?

Elmwood Park, NJ |

There is a product that functions for same purpose but looks nothing like mine. My attorney states a design is sufficient enough. However, my manufacturer states I should get a utility patent as well. What is worse case scenario if I only get a design patent on the utensil?

Attorney Answers 4


A design patent only protects the ornamental appearance of a product (i.e., how it looks). It is not intended to protect functional features (i.e., how it works). A design patent would not protect any mechanical functionality. If there is something that allows your product to work or function better than the competition, a design patent may not be able to protect that advantageous feature. You need to think about what gives your product a competitive advantage, and try to find the best way to protect it. Your attorney probably has studied the prior art and has evaluated your likelihood of obtaining a patent (and say nothing more about what your attorney told you in this public forum, or further else risk waiving the attorney-client privilege).

Design patents and utility patents can both provide valuable IP protection. Just look at the Apple v. Samsung case over the iPhone. Apple won a big judgment based on both design and utility patents.

This answer is for informational purposes only. It is not intended as specific legal advice regarding your question. The answer could be different if all of the facts were known. This answer does not establish an attorney-client relationship.

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Would you believe there is a legal tool that's somewhat between a regular utility patent and a design patent?

You haven't heard of it because it isn't part of U.S. law. But several foreign countries grant Petty Patents, or Utility Model Patents. They're all the rage in China.China, for example. And I wouldn

This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance.

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There are good reasons to get both:

Design= capability to become permanent 3-D trademark.
Utility = 20 year potential protection and the ability to grow a family of applications which change with the product.

Design= Instant Capital gains on sale
Utility = Instant Capital gains on sale

Design=More quickly examined and issued than Utility.
Utility = keeps you going, is argued and possibly issued later; AND
Insurance: = can be obtained on both with the same offensive liability policy.

There are a lot of other likenesses and synergies, especially with product differentiation and product improvements over time.

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Curt Harrington
Certified Tax Specialist -- State Bar of California Board of Legal

Electrical-Chemical-Mechanical Patent (Intellectual Property) Attorney
(562) 594-9784
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Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.

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A design patent, as stated in other responses, will only protect the ornamental features of the product. It will not protect how it functions, how it's made, or even how it's used...all of which would require a utility patent application. Design patents tend to be particularly useful in industries where the product is vulnerable to direct copying (because the design patent protects the entire product design - for example, if your design patent drawings illustrate/claim a fork with an ornamental handle and ornamental prongs, and only the prongs are copied by an alleged infringer, you may have substantial difficulty enforcing that design patent unless the handle is copied as well). Design patents are also most useful where the product design might be in the market for several years (as opposed to seasonal product designs, like in the clothing/fashion industry - because the patent may take several years to issue and has a life of 14 years from the date it issues). There is also some overlap in protection between design patents and copyright, as well as trademarks/trade dress, which your attorney should be able to explain in the context of your individual situation.

As your manufacturer suggests, even if the prior art product functions exactly the same way, you may consider a utility patent claiming a method of manufacturing the product, if there is a new or not obvious way to manufacture it. Back to the fork example, if everyone makes forks by attaching three prongs to an elongated handle, and you're the first person to think of carving two channels into the end of a handle,thereby creating a three-pronged end but by a different method of manufacturing, you could potentially patent that new method of manufacturing). Method of manufacturing claims may be harder to enforce however because to prove infringement you will have to provide evidence that the product is in fact being made a certain way (compare this to product claims, you only need to show the products are the same). Of course, sometimes companies simply maintain novel methods of manufacturing as trade secrets and never publicly disclose how it's made (like the Coca-Cola formula...the tv commercial said they even lock it in a vault!).

Determining what is 'sufficient enough' requires weighing a lot of variables (including cost, because utility patents are substantially more expensive), but at the center of your consideration will be the likelihood of obtaining meaningful patent coverage with your utility application. You can't value the patent unless you can get a sense of the prior art. Your attorney, having reviewed your disclosure versus the prior art, should be able to help you weigh those variables in the context of cost, your business plan/goals, etc...

This is a wonderful question because it shows how intertwined the various intellectual property protections are! Everybody's needs and situation are unique, and your attorney should be able to help you determine how extensive your IP portfolio should be.

Mr. Weaver is licensed to practice in the state of Florida and registered with the United States Patent and Trademark Office as a Registered Patent Attorney. This answer is not legal advice (no attorney-client relationship is established) and is for informational purposes only. Please consult an attorney to discuss your individual situation.

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