Friday, October 29, 2010

Expanding Scope of Design Patent Protection

As noted on a recent Ordinary Observer post (here – by Michael Mathaisel), Apple recently made headlines over a patent infringement loss and the near simultaneous grant of a design patent covering, arguably, the same technology.

The design patent that just issued to Apple, D624,932 was an eye opener from my perspective. I had some experience with design patents being issued on icons within a user interface. My colleague wrote an article on this very topic (here – by Thomas McGinnis) referencing for example D608,366 directed to the appearance of a display screen.

The use of design patents for static computer icons appears to lead directly to the applicability of design patents to animated icons. (See M.P.E.P. §1504.01(a) Computer-Generated Icons, Sec. IV). The ability to protect the display of animated icons on a computer display screen suggests that any display or animation within a computer screen is also protectable. Apple appears to be an early adopter of such an approach, filing design patents at a brisk pace. (Some recently issued Apple Design Patents may be found here).

I recently filed a number of design patents on virtualizations of physical designs for display on a smart phone (in conjunction with design applications on the objects themselves). The iPhone, Android, and other smart phone devices have given rise to a plethora of virtualized objects that could be covered by design patent. An interesting article (here), touches upon the use of design patents to protect the virtualization of physical objects, for example in the electronic gaming space. The virtualization of designs in that setting amount to what the authors dub as “design theft” by incorporating known designs – a virtual Ford Mustang into Grand Theft Auto, for example. The authors touch upon filing separate design patent applications to cover both the physical object and the virtualized object as is would be displayed on a computer screen. The approach is described as a “non-traditional” method of hedging bets. The “virtual” design patent helps to deflect an argument that a design patent covering a physical object does not necessarily protect a virtualization of the same object.

Of course every situation is fact specific, but it would appear from a litigation perspective that eliminating a potential argument with the relatively inexpensive filing of a design application directed to the virtual design would have significant value. In addition, I expect there to be increasing numbers of design application filed on “changeable computer generated icons,” as smart phones adoption and adoption of similar devices increases. Further, with industry participants like Apple leading the way, I expect to see the boundaries defined by the “changeable computer icon” to be expanded into the virtualization and animation of almost any display shown on any computer system.

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