As mentioned in our earlier post, there are three types of patents granted in the US: utility, design, and plant. The subject matter of a patent must fall into one of the four patent-eligible subject matter categories: process, machine, manufacture, or composition of matter, as outlined by the USPTO. Additionally, an improvement on any one of the aforementioned subjects may be allowed. If the subject matter falls into one of these categories, it must prove both novel and non-obvious.
In our previous post, we discussed how design patents may be used to provide intellectual property coverage for apparel. As mentioned, design patents may provide important coverage for clothing designs, but design patents also pose challenges that may make them less appealing for certain clothing designers. In particular, compared to trademark and copyright protection, design patents are relatively expensive to secure and the time delay from filing to grant of a design patent may be lengthy (six months at the minimum, but sometimes upwards of two years). Given consumer desire for “fast fashion,” this season’s hot new clothing design could be irrelevant by the time a design patent is granted, thus minimizing the benefits of the design patent. While there are ways to speed up design patent grants, this adds still further expense.