The First Design Patent

Did you know that the first design patent issued in the United States was issued on November 9, 1842, to George Bruce of New York? The USPTO searchable online database does not have a text copy of this patent available, undoubtedly because the design patent was handwritten. It is, however, possible to obtain an image version of the first design patent by going to the Patent Search engine provided by the USPTO, searching D1 in a patent number search, and then clicking on images. The image available purports to be the best available copy of the design patent, but it is indeed very hard to read.

One particularly surprising aspect of this design patent is that there are no images or drawings. The design patent itself covered a new typeface, which was described in words rather than by claiming the ornamental design shown, as would be the case today. Another interesting aspect of this first design patent is the candor of the patentee.

Mr. Bruce explains the apparent lack of newness of his design on the second page of the issued patent:

I do not pretend that I am the first who have cast the Types called Script, nor the first who have cast them of the size called Double Small Pica, nor to originality in the outlines of any of the types for which I now ask a patent, nor do I wish to prevent other founders from cutting and casting similar and better articles. But these Types are different from all others in their size, proportions, details and impressive effects, combining peculiarities by which they are distinguishable from all others, and these as a whole I claim to be mine . . .

Today, any description in a design patent application is not necessary, although not strictly prohibited. Nevertheless, most patent professionals will not include a written description because the design patent once issued will be defined by the drawings that are present. In fact, the drawings are the most important element of the design patent application. Every design patent application must include either a drawing or a black and white photograph of the claimed design. While many would think that photographs would be better, because a competent patent illustrator can show three dimensions in drawings it is best to have detailed patent drawings rather than photographs.

Because the drawing or photograph constitutes the entire visual disclosure of the claim, it is of the utmost importance that the drawing or photograph be clear and complete. The design drawing or photograph must comply with the disclosure requirements of 35 U.S.C. 112, first paragraph. In order to meet these requirements of 35 U.S.C. 112, the drawings or photographs must include a sufficient number of views to constitute a complete disclosure of the appearance of the design claimed. What this means is that normally there will be at least six different figures (or views) required. These would include a top, bottom, front, back, left and right views. There is, however, no need to repeat a view, so if your invention were a typical golf ball there would be only 1 view required because all views would be the same.

At the time Mr. Bruce was awarded his design patent the term for design patents was seven years, which was half of the length of protection then awarded to inventions as the result of a utility patent. In 1861, the design patent law was amended to allow the applicant to elect between a three and one-half, seven, or fourteen year term, with higher fees due if the applicant selected either of the two longer terms. The Patent Fee Act of 1982 abolished the varying term for design patents, and ushered in what today is the familiar fourteen year term for design patents.

Up until recently design patents were not considered to be all that valuable for several reasons.  First, design patents are easy to get and do not go through what you would call a rigorous examination by the Patent Office, so a lot of them are ultimately found to be invalid during litigation.  Second, and most important, the test for infringement of a design patent was not at all friendly toward the owner of the design patent.  This second point has now changed, and changed in a big and significant way.  Thanks to the Federal Circuit Court of Appeals decision in the Egyptian Goddess case the test for infringement is now extremely patent owner friendly.  Essentially, if the jury believes that based on the overall appearance the defendant has copied the design then there is infringement.  So if the allegedly infringing device looks close it is not an allegedly infringing device, but is really an infringing device.  It has now become much easier to prove infringement of design patents and thus they are far more valuable now and should be considered by anyone and everyone who has an original design.  Evidence of this new-found strength is supported by Nike’s decision to sue WalMart for design patent infringement just days after the Egyptian Goddess case was decided.

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