Essentially, design patent infringement involves violating an individual or company’s intellectual property with the making, using, or selling of a patented design. Often, inventors will attempt to alter or modify the shape or design embodied within a design patent in order to avoid this issue. While they may believe this tweaking of the idea is enough to render it a new and novel idea, often it is not. Minor differences do not necessarily prevent a finding of a patent infringement.
A design patent involves a notion called a “negative right” which prevents others from making, selling, offering, importing or using the patent design for a period of fourteen years from the date the patent is issued. It does not, however, give the patent owner the right to do any of the above mentioned either. This may seem strange but upon closer examination, it is perfectly reasonable. There may be a basic design upon which the new invention legitimately and significantly alters. However, the modification cannot exist independently of the preexisting design. Therefore, in order to sell the new design, the inventor would be infringing on the basic design of the original inventor.
Another point to consider involves the manner in which the inventor generates the idea. Reasonably, it doesn’t actually matter if the infringement “copies” the original design or if the new inventor independently came upon this idea himself. Either way, it is infringement. Conversely and perhaps counter intuitively, in copyrights, the intent to copy is the crux of establishing infringement. If it can be proved that the new copywriter did not know about the preexisting idea, even if it is identical, it is not deemed infringement!
If a design patent owner identifies a recently issued invention that appears similar to his own idea and would like to determine if this invention infringes on his idea, he needs only to consider his initial drawings and compare and contrast them with the “new” invention. Thus, this judgment is based on appearance! The basic test for infringement in a design patent is if an ordinary observer, allotting the same amount of attention as a person usually gives, readily identifies a copy. If in the eye of the ordinary observer the two inventions are essentially the same, the initial patented invention is infringed upon by the later design. Simply stated, “you know it when you see it.”
