Design Patent Strategies Everyone Can Learn from Lamborghini

Lamborghini has been granted 3 design patents in June, and a lot can be learned from their design patent strategy.

First, you have to understand what is a design patent. A design patent is an intellectual property right that gives the patent owner the right to exclude others from making, using, offering to sell, selling, or importing the patented design. After reading that definition you are probably now wondering what exactly constitutes a design that is eligible for patent protection. For patent purposes, a design consists of the visual ornamental aspects of an article of manufacture. Such ornamental aspects may be directed to the configuration or shape of an article, to the surface ornamentation applied to an article, or to combinations of shape and surface ornamentation.

Second, you have to understand what a design patent does, and does not, protect. In general, a design patent protects the ornamental appearance of an article of manufacture. Accordingly, a design patent does not protect the structure or functional aspects of the article. Thus, a design that is primarily functional, and not ornamental, is generally not protectable by a design patent. However, the structural and functional features of the article of manufacture may be protected by a “utility” patent. Therefore, the single most important part of a design patent application is the drawings. After all, a design patent’s primary purpose is to protect the appearance of an article. Thus, it is critical to accurately represent the article through the drawings and it is essential to strike a proper balance between claiming too much and claiming too little. Many designs are claimed by illustrating the entire drawing in solid lines and by including lots of detail. This technique often helps distinguish prior art and also renders a design patent more resistant to invalidity attacks. However, pure solid line drawing and added detail make the patent easier to design around. For example, consider the following automotive design patent owned by Kia Motors.

 

In a more strategic approach to design patenting, many other designs are claimed with portion claiming techniques such as broken line claiming, illustrating only a portion of the article of manufacture, and by eliminating detail. A patent on a portion may be more difficult to obtain due to increased vulnerability to the prior art, however such a claiming strategy also can significantly strengthen design patent protection since design portions typically are harder to design around. This design patent strategy is often only limited by the budget, and the decision on how much, or how little to claim, will depend on many factors and the particular circumstances. For example, are you operating in a litigious industry, or do you need to control the production and sale of aftermarket replacement parts? For example, consider the following car design patent owned by Toyota (and I trust you will recognize the model, probably solely be the grille).

Sure, it seems a little odd to claim so much of a design and only exclude the wheels and mirrors, but to be fair – I only included examples from the past month. Therefore, it would not surprise me if Kia and Toyota have several design patents that take a more aggressive approach and claim only a portion of the automotive designs shown in the examples above. Additionally, one must recognize that the design patent strategy implemented for a 6-figure supercar should be very different from that of a low-cost sedan.

Now, let’s look at what is possible when trying to use design patents to protect particular design elements of a supercar. Specifically, the inspiration for this post is the fact that Lamborghini had 3 interesting design patents issue in June.

 

Notice how Lamborghini is precisely carving out what they are protecting in each application. A smart and effective design application strategy.

So, who did it better, Kia, Toyota, or Lamborghini? Fortunately, design patent applications are relatively inexpensive, so you don’t have to have the scale of one of these three auto makers to effectively implement a smart design patent strategy on a budget.

Need to scratch your Lambo itch in a more fiscally responsible manner? Try this on for size.

Dave Dawsey – The Aftermarket Auto Invention Attorney

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