The Japanese commissioner in Washington DC in the 1900's studying the American patent system said, "We have looked about us to see what nations are the greatest, so that we can be like them... We said, 'What makes the United States such a great nation?' and we investigated and found that it was patents, and we will have patents."

A design patent covers the unique, ornamental, or visible shape or surface ornamentation of an article or object, even if only on a computer screen. Thus if a lamp, a building, a computer case, or a desk has a truly unique shape, its design can be design patented. Even computer screen icons and an arrangement of printing on a piece of paper can be patented. A design must be for an article that is different from an object in its natural state; thus a figure of a man would not be suitable for a design patent but if the man is in an unnatural position, this can be patented. The uniqueness of the shape must be purely ornamental or aesthetic and part of an article. If the design is functional, then only a utility patent is proper, even if it is also aesthetic. A good example is a jet plane with a constricted waist (narrow body) for reducing turbulence at supersonic speeds: Although the novel shape is attractive, its functionality makes it suitable for a utility patent only. A useful way to distinguish between a design and a utility invention is to ask, "Will removing or smoothing out the novel features substantially impair the function of the device?" If so, as in the jet plane with the narrowed body, this proves that the novel features have a significant functional purpose, so a utility patent in indicated. According to David Pressman's book "Patent it Yourself" two useful questions to ask to define design innovations are: (1) Is the novel feature(s) there for structural or functional reasons, or only for the purpose of ornamentation? (2) Does the novel feature make it look better or work better? (The utilitarian function always prevails.) If the state of the arts is such that the general nature of the feature and its function is old, but the feature has a novel shape that is an aesthetic improvement, then only a design patent will be proper. The design patent application must consist primarily of drawings, along with formal paperwork and a filing fee. Design patents last 14 years from the date of issuance.

In the U.S., the inventor has a "first to invent" claim which is different from other patenting organizations throughout the world who generally utilize "first to file." Debate over this issue, and which model best influences economic development is ongoing. Some are concerned that a change in patent rights may harm the small startup and benefit the incumbents with deeper pockets. You can read more about this topic.

When approached with this legal assertion, as a patent counselor for your client, you need insights to help you define and determine your defense. No, I am not: A patent is defined by its language, and many times, proper preparation for a Markman Hearing, or Claim Construction Hearing, can determine the summary judgment. If you are accused of infringing on a claim, you want to find ways to minimize the scope of the claim [on the other hand, if you are accusing, you want to broaden a claim's scope]. With IP Street, you can scrutinize a claim in various ways. Your patent is invalid: Since the USPTO granted the patent, the presumption is that all of its claims are valid. Anyone can challenge the validity of a patent (request re-examination) whether or not an infringement injunction has been made. [Normally, when the USPTO learns of an infringement lawsuit, out of due diligence, they open a re-examination case.] The quickest path to invalidate a patent is to identify prior art.

Executives need vision to convert patented R&D into a profit center. Consider EMI, a london company that produces music (a music label company). In their Central Research Laboratories in Hayes, Godfrey Hounsfield had an idea to integrate X-ray slices to create a 3-D image (originally known as an EMI scan), today know as a CT or CAT scan. Godfrey was awared a Nobel Prize for his work, and later knighted. The idea came to him while picnicking in the park; however, the senior executives realized this was no picnic. They leveraged the technology (foundation patent #3,778,614), securing over 120 of the first 450 patents in this space. The legacy competitors (General Electric, Philips, Siemens) were playing catch-up with this innovator. Few executives would be brave enough to execute such a divergent business strategy.