Contract - Practice: Design Patents Give a Competitive Edge

design - practice



Practice: Design Patents Give a Competitive Edge

19 January, 2010

-By David R. Gerk, Esq.


In 2008, the “Top 100” interior design firms took in $2.7 billion dollars in earnings.[1] The top 10 each accounted for somewhere between $1 and $5 billion dollars in project value. While these dollar figures indicate the top 100 were busy creating, designing, integrating, building, and constructing, U.S. patent figures indicate these firms are surprisingly nonexistent when it comes to protecting their designs and creations from imitation, duplication, or copying.

In the 30-year span between 1977 and 2007, the “Top 100” accounted for a total of 28 U.S. patents (15 utility, 13 design).[2] Only 10 firms out of this group of 100 had a single patent to their name, and no firm had more than nine U.S. patents issued in their name during this 30-year span. These numbers appear even lower when considering that many of the top 100 firms also possess significant engineering departments that design with patent-worthy innovations.

During this same 30-year period, Kohler, Masco Corp., Minka Lighting, American Standard, and MOEN had hundreds of design patents issued in their names with numerous utility patents also pushing their patent totals skyward. Kohler led this group with 866 design patents, while MOEN rounded out the group with 365 design patents in that span.[3] While these makers of commercial products, internal fixtures, and other goods significantly outpace their A&E firm colleagues, even these companies still fall short of the U.S. design patent historical leaders of Sony, Nike, Matsushita Electrical, Goodyear, and Canon. Each of these companies accounted for in excess of 1,350 design patents during that time period, with the top design patentee obtaining more than 2,400 design patents.[4] This group of top five design patentees also actively obtained utility patents protecting their machines, methods, and articles of manufacture.

As is apparent, even when their numbers are pooled as a group, the top 100 fall significantly short of the numbers set by top design patentees. (Click here for a graph.) So why aren’t A&E Firms using patents to protect their work? Several theories can be suggested.

First, some might suggest that interior design is wholly lacking in new and innovative subject matter. Anyone who has been to NeoCon® or similar industry shows will quickly tell you this is far from the truth.

Second, clients of the A&E firms may be obtaining the patent rights to these innovations, and therefore, patents are being obtained in the client’s name rather than in the name of the firm. While this practice does occur, discussions with designers at top 100 firms suggest this is more an exception than the rule. As such, it may explain some deflation in A&E firm patent numbers, but it does not explain their seeming absence from a listing of those significantly utilizing the U.S. patent system. Additionally, because several of the patents that were obtained by the top 100 are listed as being co-owned by both the firm as well as the client for whom the work appears to have been done, this seems like a minimal factor at best.

Third, perhaps no imitation, copying, or duplication of designs takes place? Our practical experiences dispel this notion. We know imitation, copying, and duplication can be prevalent.

This brings us to the fourth and main reason why A&E firms may fail to utilize the patent system to a fuller potential: obtaining patent and other intellectual property rights traditionally are very low on the priority list of designers and their firms. At the top of the designers’ and firms’ goals are typically those endeavors that they study and train vigorously to do—create and design. Further, those acting in a management role are also focused on winning project bids, making client deadlines, and producing a finished product that pleases the client, fostering further work. However, lost in the rush of meeting these business objectives or in perfecting their design is the bigger picture view that protecting innovative designs, methods, and products, such that competitors cannot copy or imitate, accomplishes all of the aforementioned business goals on a macro-scale and with long term effect.

For an industry robust with new creation, innovation, and invention, the interior design industry seems somewhat gaunt in its use of the U.S. patent system. While design firms spend thousands of dollars on marketing and bidding for projects, the opportunity to utilize the competitive big bang of excluding your competitors from making, using, or selling a certain design or a functional product (or method) for 14 or 20 years,[5] seems to have been lost. Should certain A&E firms and others in the industry recognize the competitive advantage that may be gained through use of the U.S. patent system to further business, design, and development goals, the right to exclude competitors from the U.S. market for 14 or 20 years awaits them.

David Gerk is a shareholder in the Washington, D.C., office of the intellectual property law firm of Banner & Witcoff, Ltd., and he serves as a part-time professor at The George Washington University - School of Engineering & Applied Sciences (SEAS) – MAE Dept. This article is for educational and informational purposes only and should not be construed in any way as legal advice. The opinions in this article are the author’s alone and are not necessarily the opinions of Banner & Witcoff, Ltd., or any of its clients. Mr. Gerk can be reached at dgerk@bannerwitcoff.com.


Sources
[1] The “Top 100” refers to the 2009 Top 100 Listing in Interior Design magazine entitled, Up To The Challenge: 2009 Top 100 Giants by Judith Davidsen, Wing Leung and Laura Girmscheid.

[2] U.S. patent statistics regarding the “Top 100” were obtained through a search of the United States Patent and Trademark Office patent database. www.uspto.gov

[3] Design Patents: January 1977 – December 2007, Patent Technology Monitoring Team Report, USPTO Electronic Information Products Division/PTMT (March 2008)

[4] Design Patents: January 1977 – December 2007 (March 2008)

[5] The term of life of United States Design Patents.




Practice: Design Patents Give a Competitive Edge

19 January, 2010


In 2008, the “Top 100” interior design firms took in $2.7 billion dollars in earnings.[1] The top 10 each accounted for somewhere between $1 and $5 billion dollars in project value. While these dollar figures indicate the top 100 were busy creating, designing, integrating, building, and constructing, U.S. patent figures indicate these firms are surprisingly nonexistent when it comes to protecting their designs and creations from imitation, duplication, or copying.

In the 30-year span between 1977 and 2007, the “Top 100” accounted for a total of 28 U.S. patents (15 utility, 13 design).[2] Only 10 firms out of this group of 100 had a single patent to their name, and no firm had more than nine U.S. patents issued in their name during this 30-year span. These numbers appear even lower when considering that many of the top 100 firms also possess significant engineering departments that design with patent-worthy innovations.

During this same 30-year period, Kohler, Masco Corp., Minka Lighting, American Standard, and MOEN had hundreds of design patents issued in their names with numerous utility patents also pushing their patent totals skyward. Kohler led this group with 866 design patents, while MOEN rounded out the group with 365 design patents in that span.[3] While these makers of commercial products, internal fixtures, and other goods significantly outpace their A&E firm colleagues, even these companies still fall short of the U.S. design patent historical leaders of Sony, Nike, Matsushita Electrical, Goodyear, and Canon. Each of these companies accounted for in excess of 1,350 design patents during that time period, with the top design patentee obtaining more than 2,400 design patents.[4] This group of top five design patentees also actively obtained utility patents protecting their machines, methods, and articles of manufacture.

As is apparent, even when their numbers are pooled as a group, the top 100 fall significantly short of the numbers set by top design patentees. (Click here for a graph.) So why aren’t A&E Firms using patents to protect their work? Several theories can be suggested.

First, some might suggest that interior design is wholly lacking in new and innovative subject matter. Anyone who has been to NeoCon® or similar industry shows will quickly tell you this is far from the truth.

Second, clients of the A&E firms may be obtaining the patent rights to these innovations, and therefore, patents are being obtained in the client’s name rather than in the name of the firm. While this practice does occur, discussions with designers at top 100 firms suggest this is more an exception than the rule. As such, it may explain some deflation in A&E firm patent numbers, but it does not explain their seeming absence from a listing of those significantly utilizing the U.S. patent system. Additionally, because several of the patents that were obtained by the top 100 are listed as being co-owned by both the firm as well as the client for whom the work appears to have been done, this seems like a minimal factor at best.

Third, perhaps no imitation, copying, or duplication of designs takes place? Our practical experiences dispel this notion. We know imitation, copying, and duplication can be prevalent.

This brings us to the fourth and main reason why A&E firms may fail to utilize the patent system to a fuller potential: obtaining patent and other intellectual property rights traditionally are very low on the priority list of designers and their firms. At the top of the designers’ and firms’ goals are typically those endeavors that they study and train vigorously to do—create and design. Further, those acting in a management role are also focused on winning project bids, making client deadlines, and producing a finished product that pleases the client, fostering further work. However, lost in the rush of meeting these business objectives or in perfecting their design is the bigger picture view that protecting innovative designs, methods, and products, such that competitors cannot copy or imitate, accomplishes all of the aforementioned business goals on a macro-scale and with long term effect.

For an industry robust with new creation, innovation, and invention, the interior design industry seems somewhat gaunt in its use of the U.S. patent system. While design firms spend thousands of dollars on marketing and bidding for projects, the opportunity to utilize the competitive big bang of excluding your competitors from making, using, or selling a certain design or a functional product (or method) for 14 or 20 years,[5] seems to have been lost. Should certain A&E firms and others in the industry recognize the competitive advantage that may be gained through use of the U.S. patent system to further business, design, and development goals, the right to exclude competitors from the U.S. market for 14 or 20 years awaits them.

David Gerk is a shareholder in the Washington, D.C., office of the intellectual property law firm of Banner & Witcoff, Ltd., and he serves as a part-time professor at The George Washington University - School of Engineering & Applied Sciences (SEAS) – MAE Dept. This article is for educational and informational purposes only and should not be construed in any way as legal advice. The opinions in this article are the author’s alone and are not necessarily the opinions of Banner & Witcoff, Ltd., or any of its clients. Mr. Gerk can be reached at dgerk@bannerwitcoff.com.


Sources
[1] The “Top 100” refers to the 2009 Top 100 Listing in Interior Design magazine entitled, Up To The Challenge: 2009 Top 100 Giants by Judith Davidsen, Wing Leung and Laura Girmscheid.

[2] U.S. patent statistics regarding the “Top 100” were obtained through a search of the United States Patent and Trademark Office patent database. www.uspto.gov

[3] Design Patents: January 1977 – December 2007, Patent Technology Monitoring Team Report, USPTO Electronic Information Products Division/PTMT (March 2008)

[4] Design Patents: January 1977 – December 2007 (March 2008)

[5] The term of life of United States Design Patents.

 


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