Industrial Design is also termed as Design Patent in some parts of the world and it is protected in India under the Designs Act, 2000. A design patent in India is a patent granted over the design of a functional item, whereas a design patent protects only the ornamental manifestation of an invention, not its utilitarian features. A utility patent would protect the way an article is used It is not easy to distinguish the difference between a design patent and other types of property. In simple way it is understood that a design patent can only protect the appearance of an article and not its functional or structural features.
The application process for design patent is very different from those relating to the other patents. If the design patent application passes its examination, then certificate will be either sent to you or your agent or your attorney asking for you to pay an issue fee.
An application for a design patent registration is too much simpler than for a utility patent. Only one claim is permitted, and it also must follow a specific form. The drawings in a design patent are similar to a utility patent, except the design patent drawings are created to show only the ornamental features of the invention. Industrial Design protection is a type of intellectual property right that gives the exclusive right to make, sell, and use articles that embody the protected design, to selected people only. Protection rights are provided for a period of 10 years. They can then be renewed once for an additional period of 5 years.
How to file a Design patent
i. Find whether any registration already exists or not?
The Designs office can assist in the search whether the design has been previously registered or not and if the registration number is known then Form No.-6 is to be filed with the prescribed fees of Rs. 500 and if the specimen of the article is filed Form No.-7 along with the prescribed fees of Rs. 1,000 is required.
ii. Then representation of the design is to be filed
A representation is an exact representation of the article on which the design has been applied. It is needed to be prepared on A4 size white paper of good quality. It should not be prepared on a cardboard. Indicate details of the design and applicant clearly.
iii. Then Identifying the class of design
The Designs is required to be categorized in separate classin order toprovide for systematic registration. An internationally accepted classification of Industrial Designs based upon the function of the article is required, the class and sub-class of the design should be mentioned in the application. There are 32 classes and the classes are further divided into sub-classes.
iv. Including a disclaimer
If the ornamental pattern on an article is likely to be confused with a trade mark then it suggests a mechanical action or contains words, letters, numerals.
v. Claiming a date
If you have applied for protection of the particular design in convention countries which are members of inter-governmental organizations, then you can claim registration of the design citing a date in India. This refers to the date of filing of the application in any of the countries provided being the application is made in India within six months
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vi. Determining the fee to be paid
Applications are needed to be accompanied by the fee either through cheque or a draft payable at Delhi or in cash (if filed in Design Office, Delhi). Application for the registration of design is Rs 1,000 for individual and Rs 4000 for body incorporate.
vii. Ensuring all enclosures are attached
Then we need to file an application, only after ensuring that all enclosed documents and fee in the required numbers are attached.
viii. Complying with objections raised
If the Design Office seeks additional information or clarifications after preliminary examination, please ensure that these are provided promptly. As it will help the office to take up your application for an early examination.
ix. Lastly, providing full details
At last while filing of an application we should make sure that all contact details and addresses are clearly and legibly filled in. This will enable the office to keep in touch with all the decisions.
Common Objections in Design Patent
There are some of the common objections faced under the Design Patent as-
- -Not new or original.
- -Disclosed to the public or anywhere in India or in any other country by publication or in any other way prior to its filing.
- -Contains or comprises obscene or scandalous matter.
- -And not able to distinguish from any known Design or any other kind of combination.
Now, after facing a series of objections we can also claim defenses as following:-
i. The Non-Infringement is one of the most common design patent infringement defense claimed in any situation. It states that the product in question is not the same as the protected one by patent in the suit. But, sometimes these cases of infringement is a result of multiple people using a method or system.
ii. Then the inventor of the patent can take a defense stating that the product or service is not obvious or Novel as the product being stated as an objection is not similar even to the closest resemblances. In such cases, the determination of obviousness involves:
• Looking at the prior art’s scope and content • It is differences with the challenged invention • Whether the claim would be obvious to anyone considered to have ordinary skill in the art required to produce the invention.
If the specific combination of elements and processes does nothing more than display predictable results, then it’s generally considered as obvious.
iii. The defense can also be claimed for the use of an invention for only research or experimentation purposes only. The accused person may further argue stating that the exploitation of the invention caused was only to the extent allowed by the law.
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