Design patents protect the appearance (ornamental design) of a functional object. The object must be functional- not artwork that is valued only for its appearance. However, the appearance of the object, to be protected by a design patent, must be purely ornamental and not functional. If the appearance of the object is dictated by its function, it cannot be protected by a design patent.
Design Patents Protect the Ornamental Design of Functional Objects
For example, a design patent was granted for the appearance of the original coke bottle. A coke bottle is a functional object, as opposed to nonfunctional artwork- it contains a beverage and is gripped and manipulated by a user to deliver the beverage. It has some utility over and above the fact that it is (arguably) pretty to look at.
However, the particular shape of the bottle is not functional- the particular curved, striated shape of the bottle does not make it easier to hold or add any functional value to the bottle. Therefore, the design can be protected by a design patent.
Design Patents Do Not Protect Functional Designs or Nonfunctional Objects
In contrast, a sculpture could not be protected by a design patent. A sculpture is not functional and has no usefulness outside of its appearance.
Similarly, the design of a new car part that cuts down on wind resistance and improves gas mileage, or the design of a new ergonomic keyboard that reduces discomfort and carpal tunnel syndrome, could not be protected by design patents because their appearance is dictated primarily by functional considerations.
The car part has its appearance primarily due to the functional advantages of that shape, and not due to purely ornamental/aesthetic considerations. The proper way to protect such functional designs is with a utility patent.
The Scope of Protection Offered by Design Patents
Design patents allow the owner to exclude others from making, using, copying, or importing any object with a design substantially similar to the patented design in the United States. Design patent protection lasts for 14 years from the initial grant by the United States Patent and Trademark Office and no maintenance fees are required during this period.
What Are Examples of Designs That Design Patents Can Protect?
Ornamental designs of jewelry (jewelry is functional, as it is worn), furniture, beverage containers, CPU cases, and computer monitors have been protected by design patents.
Design patents can also protect fonts and computer icons displayed on a computer screen. In fact, the first design patent was granted for a new font.
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Do design patents protect a shoe sole that has a function of improving one’s posture?
Andy,
Design patents protect the ornamental appearance of functional objects. So a design patent could protect the ornamental appearance of a shoe sole, which is obviously functional. However, if the appearance of the shoe sole is dictated primarily by functional considerations, in other words if it is shaped the way it is not merely for aesthetics, but because the shape improves one’s posture, then that appearance cannot be protected by a design patent. The appearance is then considered functional and not ornamental. It still might be possible to get a design patent on an aesthetic pattern used on the surface of the shoe sole, but not on the shape of the sole itself.
If this question relates to a real life issue for you and is not purely hypothetical, I very much encourage you to speak to your attorney. This site is for informational purposes only and should not be relied on as legal advice, which it is not. I am only explaining the general meaning of the laws and not their applicability to any specific factual circumstances. For example, the question of whether the appearance of an object is dictated primarily by functional considerations is a factual one that should be determined on a case-by-case basis.