Patents and design rights
Designs rights and patents can provide complementary protection for a new product, so both need to be considered to achieve optimal protection.
In general, a patent is used to protect a technical innovation such as a new or improved functionality of a product. A well drafted patent can provide broad protection covering different ways of achieving that functionality, without being limited to a specific example. However, a patent cannot be used to protect features that are purely aesthetic in nature, such as the external appearance of the product where this is determined by aesthetic considerations rather than technical considerations. For some new products, the appearance of the product may be a significant draw for consumers in addition to, or instead of, the functionality of the product.
In contrast, as discussed above, a design right is used to protect the appearance of a product, or part of it, and generally cannot be used to protect a technical innovation such as a new or improved functionality.
Therefore, to provide optimal protection for a new product having both technical and aesthetic differences to previous products, a patent application should be filed to broadly protect the technical innovation, and a registered design right should be filed to protect the appearance of the product.
In fact, for a new product there may be a number of different technical innovations, and therefore multiple patent applications may be required. In addition, there may be multiple different aspects of the appearance that are distinctive, and therefore multiple design rights may be required to provide broad protection for these different aspects in isolation and in combination.
Furthermore, having both patent protection and design protection for a new product increases the number of IP rights covering the new product and can therefore increase deterrence of potential infringers, and the value of the IP to potential investors.
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