TAKEAWAY: Companies can use significant resources in designing the look and feel of a product, and design patents can be a useful tool in protecting such product features.

Design patents are often underutilized by companies. Companies may focus on obtaining utility patents to protect the function or use of a product, but the most easily observed aspect of the product—what it looks like—may go unprotected. Companies may spend significant time and money perfecting the look and feel of a product, a look and feel that customers come to recognize, and that competitors may try to replicate. Strategic use of design patents can capture and protect the value invested in a product’s visual design and feel.

To begin with, the aesthetic design of a product may be tied to the usability of a product, how a consumer experiences the product, or the ergonomics of the product, for example. Patenting the arrangement of buttons or a control panel on a product, or patenting the graphical user interfaces that the consumer interacts with, may make it more difficult for a competitor to recreate the user experience. Further, users may become accustomed to interacting with a product a certain way, and if a competitor is blocked by a design patent from copying that experience, users may be less likely to switch to the competitor’s product. This is part of the reason, for example, why users of Macs or iPhones and users of PCs or Androids may be leery of switching between the products of different companies. The aesthetic design of the products and the resulting product interaction may inhibit switching.

Additionally, design patents may offer protection when a utility patent may be unobtainable. For example, a company may develop a new iteration of a known device or may produce basic replacement parts. The function of such a new product or part may not support utility patent protection. Yet the ‘look’ of the product or part may be new and protectable with design patent protection. For example, replacement parts may be a significant source of revenue for a company, and design patent protection may assist in stopping competitors from selling such parts. Further, the relatively low cost of design patent protection allows companies to file for design patents of varying scope to cover both individual and overall aspects of the product design.

Acquiring design patents to complement utility patents and to fill in gaps in a patent portfolio where utility patents cannot be obtained may allow companies to supplement IP protection against competitors and to derive value from previously untapped aspects of their products.