This guide discusses some of the issues associated with patents for architects. It discusses the types of patents available for architecture and helps the architect to understand why to patent a design.
Architects and architectural engineers amaze me. Beginning with the client's space needs and other requirements, they envision something with form, color and texture that inspires and amazes the viewer. They take that vision and figure out how to build it and make it habitable. They figure out how to get water and people to the top floors, how to distribute electricity and how to carry off all of the heat generated by the electronics that receive the electricity - and all of this efficiently. They figure out how to make it stand in spite of wind, rain, cold and time. They figure out how to cover its exterior and fill its interior. And the good ones figure out how to make it beautiful. As I said, they amaze me. While an architectural design can be a thing of great beauty, it is also a valuable economic asset. Unfortunately, it is an asset that is easy to imitate. Imitation of an architectural design (or even elements within the design) can reduce the value of the design and can dilute the reputation of the architect. For this reason, architects should protect their deigns - their intellectual property - with the same zeal that they protect their other forms of property. In doing so, they should consider patenting their designs.
But can you patent a building?
The answer is a resounding YES! Building designs are protectable by both utility patents, which protect the functional aspects of a design, and design patents, which protect to ornamental features of a design. Many architectural firms actively protect their designs, both with utility patents and design patents. Some buildings can be protected with several patents - including both utility patents and design patents.
Utility Patents for Architecture
A utility patent protects the functional features of a useful object. To be patentable, the object must be new, useful and non-obvious. The newness standard requires that the invention has not have been publicly disclosed prior to the filing date of the patent application (with limited exceptions). The usefulness standard requires that it has a use, which should not be a problem with architectural designs (except for certain "post-modern" designs). The non-obviousness standard requires that one of ordinary skill in the art (architecture in this case) would not have been motivated to combine prior art references (e.g., existing buildings and publications) to achieve the claimed building. The question of non-obviousness involves a complex legal analysis, which requires the advice of a patent attorney. In the discussion that follows, I refer to different patent numbers (e.g., 2,172,838 and D477,417). All of these patents can be accessed at the US Patent Office web site (http://patft.uspto.gov/netahtml/PTO/srchnum.htm). Utility patents can protect entire buildings that have novel functional features. For example, US Patent 8,371,073 protects a building with integrated systems that reduce dependency on external resources; US Patent 2,172,838 protects a slanted building with an offset arrangement of successive stories; and US Patent 3,866,363 protects a wind energy dissipating building. Similarly, utility patents can protect functional elements associated with a building , such as lighting systems (e.g., US Patent 8,172,435), bio-retention basins (e.g., US Patent 8,834,066) and window covering head rail cornices (e.g., US Patent 5,042,548). US Patent 8,336,261 protects an entire revolving roof for a stadium. When thinking about which functional aspects to protect, think of every aspect of the architectural design: foundations, framing systems, utility distribution systems, energy management systems, people placement and transport systems, glazing systems, roofing systems, room layouts, etc. (As any architect can appreciate, the list can be quite lengthy.)
Design Patents for Architecture
Design patents protect the ornamental features of a useful object. Ornamental features are features that serve aesthetic purposes and a useful object is simply an object that has an identifiable use. Design patents can be extremely powerful tools that an architect can use to keep imitators away from a valuable design. Design patents can protect the ornamental features of entire buildings. For example, the Manhattan Apple Store is protected by design patent D648,864. Additional examples include: a dwelling structure (that might be described as "post-modern") is protected by D477,417; a pyramidal theater building is protected by D256,163; and a twisted high-rise building is protected by D304,081. Design patents can also protect individual design elements that are part of a building. For example, D553,763 protects balusters; D 393,319 protects cornices and D245,424 protects fountains. Any novel ornamental aspect that gives a building its unique character can be protected with a design patent.
But copyright protects buildings, so why patent them?
Of course, the building and the plans for it are also protected by copyright. You might wonder: "if the building is protected by copyright, why would I want to patent it?" The best answer to this question is that the standards for infringement and damages for patent infringement are different from the standards for copyright infringement. Certain acts of imitation might not infringe a copyright, while they would infringe a patent. Also, damages might be more substantial for patent infringement than for copyright infringement alone. The standard for infringing a copyright requires both that the infringer had access to the protected work and that the accused work is substantially similar to the protected work. Patent infringement requires only that the accused design incorporate the elements protected by the patent, irrespective of whether the infringer had access. While an imitation of a building might look like a protected building, the differences might be substantial enough for it to avoid copyright infringement. For example, if a protected building were a high-end office building employing a glass curtain wall with shadow boxes used to hide unsightly elements and marble accents, then a smaller lower-end building that employed a similar design, but substituted fritted metal panels for the shadow boxes and precast composites for the marble might not be considered to be substantially similar, yet it might still infringe a design patent. Also, an imitator who could prove that he or she did not have access to the original building might also be able to avoid copyright infringement, while still infringing a design patent. Since secure buildings restrict access to interior spaces, an infringer might be able to avoid copyright infringement by claiming that he or she could not have gained access to an interior space and, therefore, did not infringe any copyright in the interior space. However, that argument simply would not apply to design patent infringement. Additionally, purely functional aspects of a work are not protected by copyright. Therefore, copyright would not apply to such things as an electrical distribution system, a curtain wall or a baluster (although is a baluster were made of a sculpture that is separable from the baluster, it might receive copyright protection).
So, what should an architect patent?
Architects, by their nature, create many new designs, both aesthetic and functional. A large project might include dozens of ornamental features and as many functional inventions. While it might not be practical to patent every aspect of a new design, a good patent attorney can work with an architect to figure a cost effective strategy for protecting the intellectual property of the architect.
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