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A New-Old Patent Game?

Here is a fascinating review of the Apple-Samsung patent lawsuit that has been all over the news. Even if you think you cannot read about patents, you should read this extremely well-written short article. I’ll wait until you finish and come back here.

Ready? Design patents! Really?!

Everyone used to think design patents were silly, too hard to defend, too easy to work around. I recently gave a seminar on intellectual property to small business owners. In it I mentioned that there are three kinds of patents, the odd ones being plant patents and design patents, but the only thing we needed to concentrate on is utility patents. In fact, my counsel was that if you want to protect a brand you are probably better off concentrating on a trademark for your logo than pursuing a design patent.

But a BILLION DOLLAR judgment will change minds! That’s what Apple won against Samsung.

So let’s take a renewed look at design patents as a way to build value for your company, especially for software-related companies. Because so much in software is about the look and feel of your GUI—in particular if you have a well-thought-out presentation that enhances productivity—maybe we need to be more mindful of protecting that design.

In fact, it might be worth separating design patents from the other forms of intellectual property and put it into a class of its own. I’ll group the five types like this:

Intellectual Property Types
• Trade Secret • Trademark
• Utility Patent • Design Patent
• Copyright

Trade Secrets and Utility Patents go together because they both are ways to protect your processes. Each has its advantages and disadvantages, and it becomes a business decision which one to choose in your case. On the other side are Trademarks (which incorporates Trade Dress, or “packaging”) and design patents. Each protects a non-functional visual aspect of your product (okay, you can also get a trademark for non-visual things, but that upsets my symmetry). Finally Copyrights are in a class by themselves because of their ease and low cost of obtaining, long life, and limited application.

Note that some products can be protected by more than one of these forms. For example, the Apple products that were infringed by Samsung have both design and utility patents. That makes sense for software, because you’ll want to protect the look of your GUI as well as the functionality behind it.

Armed with this simple chart, next time you talk to your attorney about your ideas, ask him (or her) into which categories they should fall. Or stay tuned to this blog for further posts on the use of each type of intellectual property.

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