2018-08-23

What is the difference between patents and designs?

After seven years, the infamous intellectual property battle between Apple and Samsung has come to an end. After the many costly and highly symbolic procedures, the parties have decided to settle the matter amicably.
As was widely discussed by international press, the disputes revolved around a multitude of patents, but also designs.

But what is the difference between patents and designs?
Indeed, those two can be confusing, and can sometimes even appear to overlap.
A patent protects the technical functionality of an invention, so long as it is new, involves an inventive step and is susceptible of industrial application. A granted patent provides the exclusive right to its owner, to prevent others from exploiting the invention.
A patent does not protect the appearance of the invention, but only the technical functionality, such as, for example, the way Apple's interface bounces when scrolled (US Patent US7844915B2 or US7469381B2).
A design right, in contrast, offers an exclusive right to its owner on the appearance itself of the product, such as the shape of the Apple iPhones (US Design USD593087S1). A design must be novel and original to be valid.
Since it is often the design that creates the recognition value of a product, the power of a valid design right should not be underestimated, as was demonstrated by the Apple v. Samsung case.

In order to protect the entirety of a technical invention meant for commercialization, it is therefore recommend to think about a possible patentability of the product, as well as its eligibility for design protection.