This final chapter covers a number of specialized topics outside the mainstream of patent law, but still worthy of discussion. These include design patents, plant patents, foreign patents, and the complex problem of extending patent protection to computer software.
Throughout this book, the term patent generally refers to a utility patent. A utility patent is a patent on a device, method, or composition of matter having a practical use.1 Most of the inventions one would commonly think of, from mousetraps to pharmaceuticals to communications satellites, are things properly the subject of a utility patent. However, the Patent Office also issues design patents. A design patent is a curious hybrid similar in some respects to an ordinary utility patent, but applied to the kinds of artistic (or at any rate decorative) expression that are also the subject of copyright or trademark protection.2 Whereas utility patents exist to promote the “useful arts,” design patents exist to promote the “decorative arts.”3
Design patents are granted to new, original, and ornamental designs, as they are embodied in manufactured objects.4 The design can be a surface ornament, such as a pattern on a cream pitcher, or it can derive from the shape and configuration of the object itself. If one conceived of a sleek new
1Utility is defined rather broadly, however, and can be applied to inventions such as toys that
have minimal practical value. See Section 8.4.
2See Sections 2.1–2.2.
3 Avia Group Int'l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1563 (Fed. Cir. 1988).
4 35 U.S.C. § 171.