Egyptian Goddess Rules
Within the realm of intellectual property, design patents are a bit like suspenders or cocktail hats. They always appeal to a core of independent-minded and devoted individuals, but only occasionally does everyone else sit up and pay attention. The recent en banc decision of the U.S. Court of Appeals for the Federal Circuit in Egyptian Goddess v. Swisa, a case involving a patented mani/pedi nail buffer design, is one of those moments.
Design patents differ from their better known relatives, utility patents or simply "patents," in that they can protect a "new, original, and ornamental design for an article of manufacture." In other words, they apply to the appearance of an invention rather than its useful aspects.
This might sound perfect for new fashion designs -- but for the fact that it's not always easy for a design to qualify as "new," it's fairly expensive to get a design patent and almost always requires legal assistance, and it takes too long to be useful for most fashion designs. (As of today, the U.S. Patent Office reports that the average pendency of a patent application is 24.6 months. Even if design patent applications might be a bit quicker, over 2 years is an interminable wait in a seasonal industry.)
Still, shoes, handbags, decorative closures, and other accessories and portable design elements have a longer lifespan than clothing designs, making design patents more plausible as a route to protection. And with the Federal Circuit's new ruling, which simplifies the process of proving infringement, a trickle could become a trend.