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em10

When Do You Not Need A Patent?

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I'm working on developing a product... This type of product already exists in the market place and is offered by a variety of companies, but all of these products for some reason seem to share the same style. My idea is to offer this same product (which will have similar features to my competitors - I'm not screwing w/ the basics), but in a new type of style that is not currently offered and that will set me apart from other brands. Since this is really just a style thing, do i need a patent?

 

(Just to give an example, since I know I'm being vague: take shoes. Imagine that they come in sports shoes, dressy shoes, and in between shoes, but that pretty much every shoe on the market is black leather and styled the same. I'd be thinking about creating a dressy shoe out of different materials, different colors, and with unique decorative accents... Would I need to get a patent for my shoe?)

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Design patents exist but are limited to protection only in the country of application and are very, very easy to get around.

 

Unless there is something new and novel about your design, that you believe would be directly copied AND you have the legal and financial backing to pursue litigation if it came up, there is no reason to file a design patent other than to say you have one.

 

Design patents are extremely easy to get around, especially if you are in a complex market where many products already exist. If you tried applying for a patent on your shoe, and someone copies the same design but adds a stripe to it, they can effectively get around your design patent because the design is now "Different". Not only that, but it would involve you hiring a very large legal team to take them to court.

 

This is the reason you see big companies "suing" each other all the time but never hear of the outcome. Generally everyone infringes on others peoples patents, but you hold your own in order to protect your IP against theirs.

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To the original poster - I just ran across this forum so forgive my late response. My company deals with IP often, as it is a piece of our development process. There are several considerations in your case;

 

1. Patent infringement might be a better focus rather than patent protection, since, as you stated, you're not messing with the basics (ie, no novel ideas being introduced that aren't already in the marketplace). If the product category could have utility patents in force (possibly used on the commercial offerings with which you want to compete) then you might want to pay for a utility patent search just to be safe - this is completely separate from the topic of design patents...and since you intend to deviate from the design aesthetic commonly offered, you shouldn't need to worry about infringing on design patents. To the moderator's point, it would be useless to apply for a design patent unless you are introducing a unique VBL that will have characteristics or methods of manufacture that are proprietary and contribute to the design.

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