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Published 06.04.2014 | Author : admin | Category : Wooden Boat Building Kits

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We also have a state-of-the-art service department and the only local Mercruiser Master Mechanic. Although design patent applications are subject to full examination in the United States to ensure that all patent law requirements have been met, the key issue is typically the quality of the drawings. In many countries, there may be multiple ways of protecting designs, for example, by patent-type design registration, copyright, trademark, and unfair competition laws.
Under the United States Constitution[3], patent and copyright protection is a matter of federal law. Thus, unless the design has artistic features that are conceptually separable from their function,[8] copyright protection is unavailable to protect designs for useful articles.
For many years, there was doubt as to whether obtaining design patent protection for an ornamental design precluded the assertion of copyright protection. In In re Pepsi Cola Co[24], the Trademark Trial and Appeal Board (TTAB) allowed an application for trademark protection for the Pepsi bottle to proceed on the Supplemental Register despite the existence of a design patent. The Court specifically declined the invitation that had been included in some amici briefs to decide whether there is any constitutional prohibition against the holder of an expired utility patent asserting trade dress protection for what had been the subject matter of that patent on the ground that the Constitution provided inventors with a limited period of exclusivity for their inventions and that the maximum duration for which such exclusivity is permitted is that set out in the patent statute.
On the other hand, the USPTO’s Manual of Trademark Examining Procedure (MTEP) points out that design patent protection may be a factor weighing against a finding of functionality “because by definition design patents protect only ornamental and nonfunctional features” although this can in appropriate cases be outweighed by other factors pointing towards functionality. Trademark protection may not be the ideal means to protect the design of a product or a label before the product has been used and, even after use commences, protection may be limited to the goods on which the design has been used.
As discussed below, the fact that the design must be “for an article” rather than “of an article” means that protection can be limited to specific novel features of the article and other parts of the article’s design may be disclaimed.
The question of the real meaning of the statutory language came before the Federal Circuit in the case of In re Webb[41] in which a design patent covering an artificial hip replacement was at issue.
The mere fact that a design is functional does not of itself preclude design patent protection. The Federal Circuit next considered whether the design was obvious, since the various component features were all previously known.
As noted above, it is possible to secure protection for only a portion of the total object.[49] It is not uncommon for United States design patents to show only some of the design in solid lines and the rest in broken lines. In the past, decisions of the Board of Patent Appeals and Interferences (the “Board”) rejected applications for design patent protection for icons of the type displayed on computer screens to indicate particular programs.[50] The basis for the rejections was that such icons (as shown) were not directed to articles of manufacture.
Today, not only does the USPTO permit claims to computer icons, but it also allows applications for animated computer icons.[51] Typically, the structure of a monitor in which an icon is to appear is shown in broken lines (so that the structure of the monitor is disclaimed) and the icon is shown in solid lines.
Provided below is the icon (drawn in solid lines) that is protected by the D702,726 patent.
An unusual feature of United States design patent practice is that a design application may be derived from a utility application.[52] As noted in Vas-Cath Inc. For applications filed on or after March 16, 2013,the Leahy-Smith America Invents Act (“AIA”) first-inventor-to-file rules apply, and it is therefore irrelevant who invented a design first. The preamble should set out the name of the inventor, the title of the design and a brief description of the nature and intended use of the article if this is not evident from the title.
The title used for a design application is important since it is also required to be used in the claim of the design application to define the article in which it is to be embodied. Care must be taken when naming the articles to be covered by the design patent in both the title and claim of the design patent. The use of shading is encouraged if it aids in understanding the invention and if it does not reduce legibility. MPEP 1503.02 II states that surface shading is also necessary to distinguish between any open and solid areas of the article and that oblique line shading must be used to show transparent, translucent and highly polished or reflective surfaces, such as a mirror. An example of the use of oblique line shading for claiming a transparent, translucent and highly polished or reflective surface is found in U.S. MPEP 608.02 IX provides drawing symbols for showing different colors and types of surfaces that should be used where relevant in design patent drawings as well as in utility patent drawings. Photographs in lieu of drawings are permitted in certain circumstances only.[72] Furthermore, use of photographs removes one’s ability to try to seek relatively broad protection by use of broken lines, which is only possible if line drawings are used. As noted above, the use of broken lines may be advantageous to broaden the protection secured by a design patent by showing only particular features in solid lines and disclaiming the rest of the article by drawing it in broken lines. The D593,087 patent discloses six different embodiments by using multiple figures and broken lines.
The use of broken lines in a design patent to create multiple embodiments (and to therefore broaden the scope of protection) can be of critical importance when enforcing a design patent because infringement can be claimed for any embodiment of the design. It should be noted that an applicant has the right to file a divisional design application for any subject matter that is excluded from the claims of the original design application as a result of a restriction requirement.[78] A divisional design application will have the same priority date as the originally filed design application that was subject to the restriction requirement. If multiple embodiments are included in a design application, the test for whether restriction is appropriate is whether each embodiment could be regarded as an infringement of each of the other embodiments. Since protection is determined by the scope of the claim, if one provides multiple embodiments in a single application, broader protection may be possible than if one prosecutes separate applications for each embodiment because the claim of an application containing multiple embodiments should be construed to cover all designs sharing the features that are common to all of the embodiments shown. Restriction practice in design applications has received newfound attention in light of the Federal Circuit’s recent decision in Pacific Coast Marine Windshields Ltd. During the prosecution of the application, the examiner issued a restriction requirement that identified five “patentably distinct groups of designs”. The Federal Circuit answered the second question in the affirmative as well, concluding that claim scope was surrendered in order to secure the patent even though the surrender was not made for reasons of patentability (e.g.
As noted elsewhere in this paper, design applications in the United States are subject to examination and it is possible for prior art to be cited against the application.
A special rule for expediting prosecution of design applications came into effect on September 8, 2000.[93] This permits an applicant to request expedited examination even if all of the requirements for making special are not met as long as the applicant has carried out its own pre-examination search and advises as to the nature of the search and the results obtained in an Information Disclosure Statement (IDS) and the drawings themselves are compliant with the rules.
Unlike many other countries, the United States does not have a provision for deferring publication of design applications.
Subject to the possibility of a terminal disclaimer if double patenting exists because the subject matter of a design patent or application is obvious over that of a commonly-owned patent or application, the term for a design patent is 14 years from grant.[94] No maintenance fees are required for design patents.
This approach has, however, been modified to some extent over the years in that even if there is a general similarity between the alleged infringement and the patented design such that the ordinary observer may be misled, the courts will still not hold there to be infringement if the points of similarity all reside in old features of the article rather than in the features that give the patented design its novelty.
This led to courts adopting a “point of novelty” test as a second test to be applied in addition to the “ordinary observer” test when assessing infringement of a design patent. The court also noted that it was not generally desirable for the district court to give a detailed description of the design to a jury as a form of “claim construction”, but rather it would be more advantageous to point out various features of the design as they relate to the alleged infringement and the prior art.
With a new redesigned dash system to make it one of the most user-friendly in the industry, the VTX is an innovative towboat. According to Dan Gasper, Malibu’s director of product design, careful thought went into choosing the new interior components for the VTX. As a way to celebrate Malibu’s 30 years of business, the Wakesetter 20 VTX also comes in an exclusive 30th anniversary edition complete with gel scheme, pearl metal flake, and logoed swim mats and carpets.
A design patent, which is comparatively easy and inexpensive to obtain, can act as an effective marketing tool by protecting the design from imitators while public enthusiasm for the design grows such that other means of protection may be eventually acquired after the design patent expires. If these are good, prosecution normally proceeds smoothly and design patents are issued relatively quickly.
As noted above, in the United States, protection of useful articles is primarily by way of design patent protection.

Trademark and unfair competition are matters of federal law insofar as they relate to interstate commerce, but can also be a matter of state law if they relate to matters within a state.
At one time, the Copyright Office would not register a copyright after a patent had issued for the design.
The registrability of such a work is not affected by the intention of the author as to the use of the work or the number of copies reproduced. While the Copyright Office will not investigate whether the matter has been or can be registered at the Patent and Trademark Office, it will register a properly filed copyright claim in a print or label that contains the requisite qualifications for copyright even though there is a trademark on it. The United States Court of Customs and Patent Appeals (CCPA) took the view that coexistence could occur in In re Mogen David Wine Corp[25], and reaffirmed this view in In re Honeywell[26]. On the other hand, as long as use of the trademark continues, a registered trademark may be renewed forever.
For example, in the “smart phone wars” some of the litigated patents have focused only on particular types of screens or particular features on the backs of the phones rather than the overall design of the phone. In an addendum to one of the decisions, however, the Board indicated that a computer screen icon may qualify for design patent protection if the drawings were to show a computer monitor with a screen displaying the icon such that it could be said that the icon was directed to an article of manufacture. Provided below is a drawing of an issued design patent for an icon of a Samsung smart phone device. Under the new law, an application will not be allowed if there is an earlier application in the USPTO for the same design filed by another and having an earlier priority date unless the applicant who filed the later application can prove that the earlier application was derived from a publication by the later applicant or from a publication by a person who derived the design from the later applicant and such publication must have occurred within one year of the later application.
However, due to attempts to secure broader protection by greater use of broken lines or by incorporation of multiple embodiments in a single application, such rejections are becoming more common.
However, additional description, for example of the use of the article or other aspects of the article not visible in the drawings may be included if desired. Color drawings are permitted only after a petition has been submitted explaining the need for them.
These numbers, if present, must be placed in the middle of the top of the sheet, but not in the margin. Shading is used to indicate the surface or shape of spherical, cylindrical, and conical elements of an object. Contrast in materials may be shown by using line shading in one area and stippling in another.
As a practical matter, when broken lines are included in the figures, examiners normally call for the description to contain a statement that no claim is being made to features shown in broken lines and examiners often call for features that are unclear in the original drawings to be redrawn in broken lines and disclaimed. By having multiple embodiments with different combinations of solid and broken lines, allows a patent owner to “pick and choose” embodiments that claim common elements with an infringer’s product, but conveniently disclaim any differing elements.[73] Thus, an infringer who may not infringe certain embodiments of the design may nevertheless be found to infringe a particular embodiment of the design, and therefore be found guilty of infringing the entire design patent. 121, an examiner may require an applicant to restrict an application to a single invention.[76] In addition, restriction may be required if examining all of the subject matter in a single application would place a serious burden on the examiner. Please refer to the prior section on how multiple embodiments may be used to broaden the scope of a design patent.
Thus, if the embodiments are of different scope, for example one is in color and another is in black and white, restriction of the application to a single embodiment may be required.
On the other hand, this broader scope of the claim runs the risk that prior art will be found displaying those common features, and once one has argued that all of the embodiments represent a single invention, one cannot normally withdraw that argument and argue that only some of the embodiments show the invention. In response to the restriction requirement, the applicant elected the first embodiment (corresponding to Figure 1, depicting four circular vent holes and a hatch) and amended the claim by amending the original claim (“with vent holes and without said vent holes, and with a hatch and without said hatch”) to recite “the ornamental design of a marine windshield with a frame, and a pair of tapered corner posts”. Pacific Coast then brought suit against Malibu Boats, alleging that Malibu Boats manufactured and sold boat windshields with a design that infringed the D555,070 patent. Most commonly, however, the issues raised by the examiner relate to the quality of the drawings. The reason for permitting expedited examination for designs is that design patent applications are often filed for items that are fashionable for only a brief period, and delays in examination can effectively deprive the designer of any protection whatsoever. However, publication of design applications, unlike most utility patent applications, occurs only at the time when the design patent is granted and there is no automatic early publication of a design patent application as there is for most utility patent applications.
Winner International LLC[101], the Federal Circuit held that the points of novelty shared by the alleged infringing product and design patent must be novel in themselves, and that a reproduction of a combination of old features does not satisfy the point of novelty test. In appropriate cases, the Federal Circuit noted that the judge could act as the ordinary observer.
Stanley Works Inc.[106], the Federal Circuit applied the Egyptian Goddess test to find non-infringement of a design patent for a multifunction carpentry tool. Its design allows users to transition between wakeboarding, skiing and wakesurfing seamlessly, especially with the addition of Surf Gate,” said Adam McCall, Malibu’s vice president of product. The main argument used against design patent protection has been their perceived narrow scope of protection.
In a recently carried out sampling, the shortest pendency for obtaining a design patent was six months, the longest was two and a half years, and about 50% of design patent applications were granted within a year of filing. Other types of design, such as architectural works, fabric design, wall paper, and jewelry, may qualify for copyright protection. The availability of protection or grant of protection under the law for a utility or design patent will not affect the registrability of a claim in an original work of pictorial, graphic, or sculptural authorship.
However, registration of a claim to copyright does not give the claimant rights available by trademark registrations at the Patent and Trademark Office. Except for marks based on foreign registrations[18], registration on the Supplemental Register requires that there must have been actual use of the mark before filing the application, and that the rights and remedies available are limited to those available at common law, there being no presumption that the registration is valid. Samara Brothers Inc.[19], the Supreme Court held that registration of three-dimensional trademarks is possible when a shape has acquired secondary meaning such that it is considered “distinctive”. June Manufacturing Co.[27], a case from 1896, the Supreme Court doubted that trade dress protection could be available for anything that had been claimed in a utility patent.
Indeed, there may be situations where it makes sense to use both forms of protection; first obtaining design patent protection and later obtaining protection by registration of a trademark after use has occurred and the distinctiveness of the mark has been acquired. For this reason, the USPTO had rejected a design patent application directed to the hip replacement. In view of the undisputed commercial success of the patented design, the Federal Circuit upheld the district court’s holding that there was no teaching or suggestion in the prior art of the appearance of the claimed design as a whole. In recent years, it has become common to use broken lines to show parts of an article for which design protection is disclaimed, and thus showing only the features for which protection is desired in solid lines. As can be seen, the icon is in solid lines while the smart phone shape (visible environmental structure) is drawn in broken lines and is thus disclaimed.
Also, the design patent application, or a foreign application from which it claims priority, must be filed within one year of the first publication of the design or public use or offer for sale of a product embodying the design by the applicant or a person who derived the design from the applicant. Case law is scarce in regard to design patents, however, as far as utility patents are concerned, it has been held that the relevant date for triggering the statutory bar is from when an injunction rather than any other remedy (such as a right of compensation) could be granted based on an existing patent right. Walgreens Corp.[58], the Federal Circuit noted that when considering the novelty of a design under any of these provisions, “individual features of the design that are insignificant from the point of view of the ordinary observer” should not be considered as part of the overall comparison. As such, the title should identify the article or articles in which the design is to be embodied by the name by which such articles are generally known to the public. Also if unorthodox shading is used in the drawings, this should be explained in the description. By far the most common objections raised in examination of design applications are objections that the lines are not clear or that what is shown in one drawing is inconsistent with what is shown in another. Similarly, photographs are not normally permitted, but will be allowed if they are the only practical way of showing the claimed design.

The numbers can be placed on the right-hand side if the drawing extends too close to the middle of the top edge of the usable surface. By using this technique, the claim will broadly cover contrasting surfaces unlimited by colors. This design patent, as shown below, uses thinly spaced lines for claiming a black, highly polished, reflective surface over the entire front face of the iPhone design. Shown below, the D593,087 patent claims a bezel surrounding the perimeter of the phone’s front face and extending from the front of the phone partway down the phone’s side. The embodiments of the D593,087 patent are directed to the “ornamental design of an electronic device” and differ from one another by incorporating different combinations of broken lines and solid lines for depicting (1) the oval upper speaker, (2) the rectangular screen border, and (3) the circular home button. Consequently, restriction may be required when multiple inventions contained in an application are classified separately in the USPTO search classification, have separate status in the art, or require a different field of search. Similarly, restriction may be may be required if some of the drawings depict an entire article and others only part of it. Malibu Boats, LLC[79], where the Federal Circuit held that prosecution history estoppel applies to design patent infringement when embodiments of a claimed design are surrendered by electing a particular embodiment (or embodiments) in response to a restriction requirement.
The applicant also cancelled the figures pertaining to the other embodiments of the design and left only figures depicting the first embodiment. The design alleged by Pacific Coast to be infringing the D555,070 patent was a boat windshield with three trapezoidal holes, as shown below. It is possible to replace the drawings during prosecution as long as no new matter is added.
Westrock Inc.[97], a design patent protects only the novel, ornamental features of the patented design. In an en banc rehearing[104], the Federal Circuit unanimously held that there was no separate point of novelty test, and that the ordinary observer test is the only test for determining whether design patent infringement exists.
International Trade Commission,[105] the Federal Circuit reversed a decision of non-infringement by the United States International Trade Commission (ITC) with respect to several different types of footwear. The Federal Circuit held that in evaluating whether the ordinary observer would be deceived, it was helpful to look at distinctions between functional and ornamental features of the design.
The 3D cut diamond hull make soft, flat wakes for skiing, while adding 1,250 pounds of hard-tank ballast and deploying the Power Wedge create perfect transitions for wakeboarding. This, however, is an understatement: by the use of broken lines in the design patent’s drawings to focus on particular features of an article, and by the incorporation of multiple embodiments in a single application so as to lead to a broader interpretation of the design patent’s claim, relatively broad protection may be acquired.
However, in situations where there is a possibility for state and federal laws to co-exist, the United States Constitution provides that federal law prevails, and federal preemption precludes States from enacting laws that conflict with federal law. The key test espoused by more recent Supreme Court decisions is whether or not the shape in question is functional.
Yves Saint Laurent America Holding, Inc.[31], in holding that distinctive red soles for women’s shoes qualify for trademark protection, held that “a mark is aesthetically functional, and therefore ineligible for protection under the Lanham Act, where protection of the mark significantly undermines competitors’ ability to compete in the relevant market”[32]. The Federal Circuit, however, reversed the USPTO decision and remanded the case for further action. Gear[44], “when function dictates a design, protection would not promote the decorative arts, a purpose of the design patent statute”.
The USPTO refused to allow the claim as originally filed because it did not specify a “particular article” for which the design was for (please also remember that a design patent is “for” an article and not “of” an article). Therefore, it is of the utmost importance that the drawings be of good quality because otherwise, objections as to lack of clarity will be raised and attempts to correct the defects pointed out by the examiner may lead to rejections of the revised drawings as adding new matter. If permitted, the photographs must be developed on paper meeting the USPTO’s page size requirements.
The drawing sheet numbering must be clear and larger than the numbers used as reference characters to avoid confusion.
Broken lines are used in the patent to show the visible environmental structure of the phone which is disclaimed. For example, in the first embodiment, the oval speaker and rectangular screen border are drawn in broken lines, and are thus unclaimed, while the bezel and circular home button are drawn in solid lines and are claimed as part of the patent. One possible way to respond to allegations of lack of clarity or inconsistency in the drawings is to redraw them with the parts in questions shown in broken lines.
The Federal Circuit found the footwear alleged to be infringing was confusingly similar to the patented design from the view of the ordinary observer.
In this case, the court found that once the functional features were discounted, the “streamlined theme” of the accused designs was significantly different from the patented designs so that the overall appearance was not deceptive. It was held that the ordinary observer in this case was the prospective purchaser of truck tires, even though neither the title of the patent nor the limited written description referred to “truck” tires. The recently announced Surf Gate (patent-pending) technology can also be engaged to make the ideal wave for wakesurfing. TRI Industries[54], it is also possible, in appropriate cases where the drawings provide sufficient information to constitute a written description for a utility patent application, to have a utility application derived from a design application. 102(d) is of a greater concern in the design patent context because foreign design applications can be granted rather quickly.
After several rounds of amendments, the USPTO eventually granted the claim as “[t]he ornamental design for package, jewelry item, teaching aid, game piece or promotional item, as shown and described.” The D614,077 design patent is provided below. The number of each sheet should be shown by two Arabic numerals placed on either side of an oblique line, with the first being the sheet number and the second being the total number of sheets of drawings, with no other marking. In contrast, the second embodiment has the rectangular screen border and bezel drawn in solid lines, and are claimed as part of the patent, and has the oval speaker and circular home button drawn in broken lines, and thus unclaimed. Of course, this is only possible if enough of the drawing continues to be shown in solid lines for the claim to have any meaningful scope in distinguishing it from the prior art. The Federal Circuit criticized the ITC for reliance on a “detailed verbal claim construction”, which the Federal Circuit felt had led the ITC to improperly create a “mistaken check list for infringement”.
A product feature has been defined as being functional “if it is essential to the purpose of the article, that is, if exclusive use of a feature would put competitors at a significant non-reputation-related disadvantage”.[28] In TrafFix Devices Inc.
In LA Gear, the defendant argued that each element of the design in question (which was for athletic shoes) had a utilitarian purpose, and therefore, the design was functional and not protectable. Thus, if a foreign design is granted, and more than six months has elapsed from the filing of the foreign design application, a corresponding U.S. These lines must be thin, as few in number as practicable, and they must contrast with the rest of the drawings. The Federal Circuit noted that the designs had to be looked at as a whole, bearing in mind that in crowded fields, small differences might take on greater significance than in fields where there was less prior art.
As a substitute for shading, heavy lines on the shade side of objects can be used except where they superimpose on each other or obscure reference characters.
Solid black shading areas are not permitted because, as noted above, black surface shading can only be used to show the color black or to show color contrast.

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