When we talk about patents, we are generally talking about “utility” patents. Utility patents protect inventions that claim to have practical application or use. (A lot of them still claim things that are actually unnecessary, but they are meant to be potentially useful.)
“Design” patents, on the other hand, only protect the ornamental or decorative aspects of a design. They do not protect any type of functionality. If there is a functional work to protect, only a utility patent will do.
Because design patents can only protect non-functional works, they’re a bit like copyrights for visual works. And the bar for creativity and originality in a patented design is low, so low that even a standard graphical user interface can achieve patent protection, as our last stupid patent of the month shows.
Below is a patented design owned by Siemens Healthcare GmbH, a company that is part of Siemens, Europe’s most prolific patent filer:
This patent, U.S. Patent No. D872,112, is a relatively standard graphical interface, with rows of circular icons displayed below a header bar. But the patent doesn’t protect everything in this picture – most importantly, the parts surrounded by broken lines are not part of the patented design. The design also includes features not shown in the image, namely the colors used in the display. To understand what was actually patented here, a member of the public needs to do more: they can request and pay for a hard copy of the patent from the US Patent Office or browse the PTO’s (extremely clunky) PAIR database. in the hope of finding a downloadable version of the originally filed image.
Between poor image quality and broken lines indicating unprotected elements, it’s virtually impossible to identify what even the patented design is. Is it the specific arrangement of the circular icons in the three rows? If so, why are some circular icons excluded? Are these the icons that a Siemens designer created to represent things like “users” and “receivers?” If it is so difficult to say what the patented design actually is, it will be even more difficult to determine if other designs are in violation. Counterfeiting is based on the comparison between the patented model, the offending model and the state of the art. But that analysis can’t even take place until it’s clear exactly what a design patent protects.
Lack of rigorous examination standards, lack of clarity and the resulting low quality of design patents are already a big problem. But it could be about to get worse. Patent lobbyists are pushing to give owners of design patents more power over developers and users of technology. They introduced a bill that gives customs and border protection the power to seize products at the border simply by measuring them and comparing them to design patents, whose owners are demanding this new kind of special treatment. .
Giving so much power to CBP will pose a real danger to ordinary technology users. Imagine CBP trying to determine the infringement of a patented design like the one above, which is a graphical user interface for medical software. To assess infringement, CBP officers could examine a device, including software applications, to see if they match the designs patented in the registry. When these applications relate to health services, the medical confidentiality of users may be threatened.
Design patent owners don’t need more power than they have today. Instead, we should ask ourselves if design patents should exist. We already have the copyright. It is not clear that granting additional patent rights to works without practical application is of any benefit to the public.