What Is a Design Patent?
Most people, when they think about a patent, generally imagine how an invention operates and functions; this type of patent is called a utility patent. A design patent is concerned with how an invention looks and feels.
Design patents have been in existence for as long as utility patents have and last for fourteen years from the date that the application for the patent is filed.
It’s every Amazon seller’s worst fear, having their valuable listings removed due to Amazon patent infringement disputes. Design patent infringement notifications from Amazon are becoming ever more frequent, especially in recent months.
Amazon is paying very close attention to the patent rights for products listed on its platform and encourages the community to report any infringement via this form.
By simply browsing the Amazon Seller Central forums, you can see how Amazon patent infringement issues are escalating and causing real, and potentially very costly problems for Amazon sellers.
In light of the problems and potential consequences that Amazon sellers may face, InQuartik has put together a series of articles addressing design patent infringement. In this article, we are going to explain:
Here are just a few snapshots of real-life Amazon Design Patent infringement issues and messages taken straight from the Amazon Seller Central forums:
We removed some of your listings because we received a report from a rights owner that they may infringe on the following design right.
Design Right number XXXX
The listings we removed are at the bottom of this message.
Why did this happen?
One or more of your listings may be infringing the intellectual property rights of others.
We’re here to help.
If you need help better understanding what is causing this, please search for “Intellectual Property Violations” in Seller Central Help (https://sellercentral.amazon.com/gp/help/external/201361070 13).
How do I reactivate my listing?
To reactivate your listing you may provide one of the following:
A letter of authorization or a licensing agreement from the manufacturer or Rights Owner demonstrating that your products are lawful to email@example.com.
External links are not accepted. For security reasons, we only accept attachments in the following file formats: .jpeg, .jpg, .pjpeg, .gif, .png, .tiff.
Have your listings been removed in error?
If you believe there has been an error, please tell us why. Your explanation should include the following information:
– How your account has not violated the rights owner’s intellectual property.
What happens if I do not send the requested information?
If we do not receive the requested information, your listings will remain inactive.
Infringement type: Design Number: XXXX
Complaint ID: XXX
Amazon Design Patent Infringement Notification
How Is a Design Patent Obtained?
Design patents are granted by the USPTO (United States Patent and Trademark Office.) Patent prosecution is the process involved in obtaining a patent, and filing a patent application is the first step of the prosecution process.
For an application to be considered, it must contain a specification. The specification should include the following items:
At least one drawing of the design.
A description of the drawing(s)
The patent claim is probably one of the most critical components of a patent spec as it explains what the patent does and does not cover. In a nutshell, the extent of protection granted by a patent is defined by the patent claims.
A claim is typically expressed as a statement of technical facts which define the scope of the invention. The claim construction is really important, and the more detail used when drafting a claim, the better. If a patent claim is insufficient or poorly written, then the case may end up having holes in it.
Once the patent examiner has received the patent application, they will then proceed to review records to determine whether or not the design is patentable. A prior art search is performed to establish if the design is new and not obvious, the prior art is evidence that your invention is already known.
Once the prior art search and further examinations have been completed by the examiner, the applicant will then find out if their design is patentable or not. Any correspondence between the patent examiner and the applicant is called the prosecution history.
What Is a Design Patent Like and What Does a Design Patent Drawing Look Like?
A design patent drawing should include the following:
- Details about every visible feature.
- Detailed information such as the object’s texture, proportions, outlines, surface, and shape.
It’s very important to note the importance of broken lines in design patent drawings.
The USPTO states that:
“A broken line disclosure is understood to be for illustrative purposes only and forms no part of the claimed design. Structure that is not part of the claimed design, but is considered necessary to show the environment in which the design is used, may be represented in the drawing by broken lines. This includes any portion of an article in which the design is embodied or applied to that is not considered part of the claimed design. When the claim is directed to just surface ornamentation for an article, the article in which it is embodied must be shown in broken lines.
In general, when broken lines are used, they should not intrude upon or cross the showing of the claimed design and should not be of heavier weight than the lines used in depicting the claimed design. Where a broken line showing of environmental structure must necessarily cross or intrude upon the representation of the claimed design and obscures a clear understanding of the design, such an illustration should be included as a separate figure in addition to the other figures which fully disclose the subject matter of the design.”
An Example of Broken Lines: Apple
On January 5, 2007, Apple filed two design patent applications for two phone charging bases. On March 13, 2008, (D568874) was granted. On March 10, 2008, Apple wanted to protect some of the important design features of the base (D571360), so they filed a continuation application.
A continuation application is filed by the applicant when they want to proceed with additional claims to an invention that have been previously disclosed in the earlier application. The original application is referred to as the parent, and any subsequent applications are referred to as children.
The base has two embodiments (D595264), and the outline and bottom of the base in the drawing are in the form of a broken line. The design feature of the concave arc revealed in the drawing matches the bottom of the iPhone. The application of this single design feature is to prevent others from using the design of this arc to make other styles of iPhone mobile phone bases.
No More Amazon Patent Infringement: Why Should Brand Owners Pay Attention to Design Patents?
Protect Your Reputation
It’s hard to build up your brand with great Amazon feedback and reviews. You may damage your reputation in the event of becoming involved in an infringement case.
Protect Your Ideas and Your Reputation
If you have displayed your design in a public setting such as an event or showing your design in any publication, you must file your design patent application within 12 months.
If the design has never been shown in a public setting, then there is no deadline for filing. However, you will then run the risk of someone stealing your design idea while it is unprotected.
Brands (especially younger ones) rely on building a great reputation; if you are found guilty of design patent infringement, this may harm your hard-earned reputation. Your customers may lose trust in you, and it can take a long time to gain their confidence and trust back.
Discover and Seize Opportunities
On the flip side, if you come across a potentially hot or lucrative design or product, it’s always worth performing a design patent search to find out if the design has already been patented. If it hasn’t, then there could be an opportunity to patent the design yourself, stopping competitors from using and selling it, thus giving you a competitive edge.
Manage Amazon Patent Infringement Risks
If your design or concept has already been patented, you can either decide to perform a design around or move on to the next idea instead.
Save Time and Money While Preventing Losses
If you don’t conduct a thorough design patent search before submitting a patent application, you could end up paying the patent application fee for a design that is already patented.
As a brand seller, you need to design your products and prototypes; the potential losses could be huge because you need to invest a lot of time, resources, and materials into your products.
Additionally, you will need to pay attention if your product is mass-produced as the losses could be even higher as the product can’t be reused or resold if it infringes on someone else’s patent. High-risk industries include drone manufacturers because a drone contains many parts, components, and technologies.
No More Amazon Patent Infringement: Why Should Private Label Sellers Pay Attention to Design Patents?
Amazon Account Suspension
If you get your Amazon account suspended for design patent infringement, this could be disastrous for your business.
Reduce the Risk of Wasting Money
You may buy your products from manufacturers and then rebrand them/place your own labels on them. If you buy in bulk from the manufacturers and the products infringe on someone else’s product; this could result in you wasting your money.
Make Sure Your Product or Design Has Not Already Been Patented
As a private label seller, you might not necessarily need to file a design patent application. However, it is still essential that you perform a design patent search to make sure that you are not infringing on anyone else’s patent. If you do infringe, as mentioned above, you could face the risk of losing your profits to the patent owner.
What’s Next To Avoid Amazon Patent Infringement?
Since we’ve understood what a design patent is and the importance of it. In our next article, we are going to take a look at the best course of action to take in the event of receiving an Amazon patent infringement notification. We will also explain exactly what design patent infringement is, and what the consequences of patent infringement are.
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