Friday, April 26, 2013

Advanced Design Patenting Techniques – Part II

In our last post we discussed a number of advanced design patenting techniques used to broaden the scope protection afforded by a design patent.  Using examples from granted patents we discussed continuation application practice, claiming features not immediately separable, and including multiple embodiments in one application.  This week we continue our discussion with a number of additional techniques. 

Not limited to scale or particular dimensions

Last week we discussed claiming features not immediately separable from the design, including a U.S. Patent D599,742 for connector with a wavy line through the center of it, which brings us to the next advanced patenting technique- scale or dimension of the design.  The advanced design patent applicant can claim a design that is not limited in scale or to a particular dimension.  This provides broader protection against an infringing design that may be of a slightly different scale.  For a design of indeterminable length or width, the advanced patent applicant can use wavy, jagged, or broken dashed lines as shown in the connector discussed last time and the examples shown below.  By showing part of the body of the connector in dashed wavy lines, the applicant essentially claims a connector not limited to a particular length.  This technique could also be applied to any other dimension including width and height of a design.  

There does not seem to be a consistent use of a particular line type for this purpose.  For instance, U.S. Patent D526,620 shows a surface mount connector of indeterminate length having two set of broken jagged lines and brackets through the body of the connector.  Other examples include the U.S. Patent D558691 for Electrode edge strip that uses dot-dash lines through the center of the strip and U.S. Patent D472408 for Furniture part that shows wavy lines and brackets through the center.

The applicant can both claim and disclaim a dimension within the same application through use of multiple embodiments.  For example, U.S. Patent D621,409 includes a first embodiment of a computing device shown in FIG. 1 and a second embodiment of a computing device shown in FIG. 3, which includes pairs of closely adjacent, spaced jagged dash-dot-dot broken lines.  The embodiment of FIG. 1 claims the length and width of the keyboard.  The description indicates that the lines shown in FIG. 3 are broken away to indicate no particular length or width, and such pairs of jagged, broken lines themselves form no part of the claimed design.  The materials that may be visible between the jagged lines is noted to have been removed for clarity. 

To disclaim the scale of the design, the applicant simply includes a disclaimer in the description portion of the application.  For example, US Patent D558,756 for Electronic device includes this verbiage: “The article is not limited to the scale shown herein.” 

Use of the description

Most practitioners seem to add a modicum of information to the description of the design application.  As noted above, the description can contain the disclaimer related to scale or length, broken lines not forming a part of the claimed design, the purpose of particular types of lines, use of color and shading, showing contour, claiming or not claiming surface ornamentation, and other disclosure descriptive of the drawings themselves.  For example, U.S. Patent D662,497 includes a description of relatively light gray shade lines on the surface portions that indicate contour and not surface decoration.  Similarly, U.S. Patent D652,519 for a Dilator includes a description of the shape of the article, because it may not be clear from the drawing: “The dilator is circular as seen from the end.”  

But a practitioner is not limited to descriptive language and can add language that can potentially broaden the application of the design patent to other fields.  For example, U.S. Patent D618,677 for Electronic device, includes the description: “As indicated in the title, the article of manufacture to which the ornamental design has been applied is an electronic device, media player (e.g., music, video and/or game player), media storage device, a personal digital assistant, a communication device (e.g., cellular phone), a novelty item or toy.”  In theory, this description can allow the patent owner to assert this patent against not just phone manufacturers but any number of potential infringers.

The description can further be used to describe a sequential transition of a design.  For example, U.S. Patent D670,713 for Display screen or portion thereof with animated graphical user interface shows a sequential animation of a page turn.  The description of the patent includes these statements: “The appearance of the animated images sequentially transitions between the images shown in FIGS. 1-3.  The process or period in which one image transitions to another forms no part of the claimed design.”  This method can be used to claim designs that are assemblies of parts or designs that include multiple configurations. 

Stay tuned for next edition of advanced design patent drafting techniques when we will talk about the use of the color, translucency, and surface shading.

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