Anyone can file for a patent, even architects! Therefore, this article will focus on how patents can benefit architects. It will introduce the concept of I.P. protection for designs and describe what it protects.
Almost every architectural project involves a design that is both new and useful. According to the U.S. Patent and Trademark Office (USPTO), Novelty and Usefulness form an invention's legal basis. Therefore, architects and designers, by virtue of what we do, are prolific inventors. Yet few seek Intellectual Property (I.P.) protection for their designs.
INTELLECTUAL PROPERTY 101
A good way to understand I.P. is to use real property as an analogy. Imagine a field surrounded by a fence. Your idea (invention) is the field, and the bounds of your idea is the fence. No one can enter (infringe) your property (idea) without your permission. A patent owner can sell, license, or work the property (or do nothing at all). I.P. has real monetary value. And like real property, I.P. can be very valuable or worth very little.
There are three main forms of I.P.: Patents, Trademarks, and Copyrights. Patents further break down into Utility patents, Plant patents, and Design patents. Design patents protect the “ornamental appearance of an article of manufacture”, which is legalese for how the article looks. Design patents do not protect how an article works. As such, Design patents are the ideal instrument to protect those items whose value lies in their aesthetics. (Designs can also be copyrighted, but there are important differences between Design patents and Copyrights.)
The range of subject matter that falls under the aegis of Design patents is broad. In addition to Kermit the Frog [Figure 1], the subject matter can be any article of manufacture. This includes buildings, building components, textiles, panels, finials, tiles, molding, etc [Figure 2]. Color, per se, can’t be patented, nor can naturally occurring designs such as vein patterns in marble.
WHAT DESIGN PATENTS PROTECT
In D-686,343 [Figure 3], the inventor has exclusive rights to any make and use this building design for 14 years. He can sell (assign) or lease (license) this design to another. He can also prevent others from constructing a similar design, which is known as infringement. This does happen. In the 1990s, a copy of Le Corbusier’s Ronchamp was built in China [Figure 4]. The Fondation Le Corbusier accused the builders of intellectual property theft [See Figure 5 for the original version]. The knockoff was eventually demolished.
The downside of Design patents is that, by their very nature, they are narrow in scope. Using the real property analogy above, a Design patent would be a very tiny field. That is, it would take only slight modification to avoid infringement. The modification [Figure 6] probably would not infringe in D-686,343. With “probably” being the operative word. I.P. litigation is murky because the definition of an obvious modification (the window) is highly subjective. As with most legal matters, the outcome largely depends on an attorney's skill to effectively argue their client’s position.
There was a time when the currency of commerce was manufacturing. However, in the U.S., we no longer make many physical things. The new economy is based on ideas rooted in innovation. Design Patents are essential tools to protect innovation.