When most people think of patents, they naturally think of utility patents. Utility patents claim novel and non-obvious products and processes in words, occasionally using chemical formulas to protect an invention. Sometimes, however, customers will select a product with a more stylish design over the competition, particularly when the utilitarian features are similar among the available options. That’s where design patents come in — to protect a product’s novel ornamental design rather than its utilitarian features.
A common question is, “Why bother filing a design patent application when the product is protected by a utility patent or a utility patent application has been filed?” For one, utility and design patents protect different aspects of a product. Design patents are not intended to protect anything that is primarily utilitarian, instead they protect the purely aesthetic features of a product. More importantly, perhaps, is that the remedy available for infringement of a design patent can be different from infringement of a utility patent — in at least one case, a billion dollars different.
Damages for utility patents are typically limited to a reasonable royalty, although they can be equal to the patent owner’s lost profits. Damages for design patents, however, can be the infringer’s entire profit for a product found to infringe a design patent. The difference between those two measures of damages can be...
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