The Need for Protecting a Creation
For a responsible and a considerate owner, creator or proprietor, the protection of their creation is a prior concern. When we successfully invent something that we think is going to benefit us commercially or we are mainly intending to use the particular invention as a source of our living then we certainly cannot afford to lose it or let it be exploited by someone else.
The Act of Copying May Lead to Irreparable Loss
We can definitely stop others from using the concrete structure but what about the formula or the design if it gets copied? How can we stop others from manufacturing and selling something that is the result of our idea? For this purpose, the ultimate resort goes to the intellectual properties: patent and design.
Difference Between Patent and Design
A patent is acquired for an invention which is new and useful and for its functions and processes as well. A patent restricts others from copying it. Whereas a design is obtained in order to protect the aesthetic or ornamental features of a product. Both patent and design can be acquired in respect of the same product.
For example, a patent can be for the unique function of a fan and a design can be obtained regarding its shape and look. This way the fan will be protected in its function as well as its design.
According to the law of enforcement and protection of intellectual property in most countries, generally a patent can be registered for a period of 20 years whereas a design is protectable for a period of 5 years that may extend up to 15 more years. Both require prior examination to ensure the product is new and distinct from the existing designs and patents. The examination part is where most owners get a tough time in choosing whether to go for a design or a patent to get their creation protected for a definite period of time.
Factors affecting registration
The registration process for a patent requires an in-depth examination whereas while registering a design, one only has to show that the design is new and original. Therefore, the chances of rejection of a patent are more as compared to a design, as the registration authorities cannot restrict the functions and processes of an invention which can be brought to public use and welfare. Cost factor also makes a design more preferable than a patent because the patent registration costs way more.
During the infringement proceedings, the relief prayed in the court is also often preferred with respect to a design of a product than a patent for the same reason of exorbitant cost. Besides if a person files infringement proceedings against someone for their patent being copied, the Court initiates an examination which is very time consuming and it might cause loss to the aggrieved party. For example, if a party seeks an injunction order which means a stay order to stop the infringer from manufacturing the product then the court will examine the product before granting the temporary or permanent injunction and by the time it’s granted, the patentee might suffer a loss of good will in the market because of the presence of a copy of their product the consumers might not want to risk their money on something with a fake version also available.
Key Facts about Patent and Design:
- The first law regarding patent was enacted in the United States in 1790.
- The American Inventors Protection Act of 1999 (AIPA) was enacted by Congress on the 29th of November, 1999. Here the patent law was further revised.
- The patent law makes the specification for the subject matter of the patent and for the conditions regarding patentability.
- The patent law established the United States Patent and Trademark Office (USPTO or Office).
- The USPTO which is an agency under the U.S. Department of Commerce takes care of the issues regarding patents and designs
- The USPTO grants patents for protecting the inventions and registering the trademarks.
- The patent law provides guidelines for granting of design patents to anyone who has formulated any original, ornamental, and a new design for a product or service of manufacture.