Design Patents

Posted Monday, November 30, 2009 by Jim Ruttler.

Design patents protect new and non-obvious ornamental aspects of existing articles of manufacture. For example, design patents may protect a new shape of sunglasses, an artistic imprint on a lamp base, or even a new font face. Google has even recently obtained design patent protection for the layout of their homepage.

One issue with design patents was recently reviewed in a research paper titled, “Overcoming the ‘Impossible Issue’ of Non-obviousness in Design Patents” by University of Pittsburgh Law Professor Janice M. Mueller and Daniel H. Bream. In this paper, the authors address the difficulty of determining what constitutes a non-obvious design. Non-obviousness is a principle borrowed from utility patents, which essentially requires a significant advance over the existing art as viewed from the perspective of one skilled in art for which the invention relates. Within the field of design patents, the authors argue that non-obviousness is not a fitting requirement for ornamental designs for a number of reasons including the subjective nature of designs, the difficulty of determining what constitutes and ordinary designer, and the difficulty of distinguishing between obvious and non-obvious design improvements from the perspective of an ordinary designer. One solution offered would be to determine non-obviousness from the perspective of an ordinary observer.

From a practical standpoint, the Patent Office doesn’t generally issue rejections for design patents based on obviousness unless designs are substantially similar, perhaps proving the authors point. Design patents often sail through the patent office without receiving any rejections so long as there is some artistic difference between the applied for design and the existing art.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1505384

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PTO Withdraws Claim and Continuation Rules

Posted Monday, November 16, 2009 by Jim Ruttler.

The Patent Office, under its new director David Kappos, has withdrawn the previously proposed claim and continuation limit rules. In a previous posting, I discussed how the claim rules would limit the number of claims to 25 in a single application unless the applicant could show why more were needed and the continuation rules would limit the number of continuations to two. The previous director introduced the rules as a means to reduce application backlog and the overall application size to increase examination efficiency. However, Kappos indicated in his recent blog posting he believed that these rules had the effect of severely curbing patent rights.

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New Patent Office Director Blog

Posted Monday, November 16, 2009 by Jim Ruttler.

Director David Kappos of the United States Patent and Trademark Office has established a new blog intended to improve communication with the inventor community. In his first post, he discussed the importance of the independent inventor community, reforms to minimize patent backlog and improve efficiency, reforms in post-grant review proceedings, and his interest in switching to a first-to-file system. The blog can be accessed at: http://www.uspto.gov/blog/director/

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Provisional applications as prior art

Posted Thursday, November 05, 2009 by Jim Ruttler.

The federal circuit is considering whether a non-provisional application claiming the benefit of a provisional application is prior art as of the filing date of the non-provisional application or the provisional application. This is a new question, because the relevant statute, 35 USC 102(e) is silent in this regard. It is the case that parent international and other non-provisional applications are prior art as of the filing date of these applications. It is also the case that parent foreign applications are not prior art as of their filing dates.

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Proposed changes to RCE processing

Posted Thursday, November 05, 2009 by Jim Ruttler.

The patent office is planning to implement new changes to handling of RCEs. Currently, upon receiving a final rejection, it is possible to file a request for continued examination (RCE) and receive a new non-final look at the claims. This will continue to be the case under the new rules, but the time frame for receiving another non-final office action could be stretched out a little longer.

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