Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 23, Issue 9
Share on Social
Taco ‘Bout Innovation: Cinco de Mayo and the Importance of Design Patents
Did you know General Mills got a patent on a tortilla shell?
When we think of the word “patent,” most of us think of a utility patent—which is a patent for protecting the function or a utilitarian feature of an invention. However, US patent law also allows for a patent to be granted to a design of product. A design patent protects the appearance of a product. For example, a design patent can be directed to the configuration or shape of a product, an ornamentation on the surface of the product, or to a combination of the two.
In other words, a utility patent covers how something works, but a design patent covers how something looks.
In fact, a design patent can cover a new design for an existing product. This is how General Mills obtained design patent USD759,342 for a “shaped tortilla”—a concept that has been around probably as long as the tortilla itself. The patent is not directed to a method of making a bowl out of a tortilla or to a bowl made from a tortilla. It is only directed to “the ornamental design for a shaped tortilla”—essentially, a tortilla in the drawing below:
Melissa M. Chapman is an associate attorney at Fishman Stewart and works in the firm’s Patent Practice Group. Check out her full bio here.
Published May 5, 2023
Related Content from Fishman Stewart
The US Copyright Office recently made headlines for partially revoking a copyright registration it previously issued for an AI-generated graphic novel. Artist Kristina Kashtanova used the Midjourney platform to create images that she included in her graphic novel called Zarya of the Dawn.
Ed Sheeran recently successfully defended against a copyright infringement lawsuit over his 2014 hit “Thinking Out Loud.” Songwriter Ed Townsend’s heirs brought the suit alleging Sheeran had infringed Townsend’s copyrights in the 1973 Motown classic, “Let’s Get It On” which Townsend co-authored with Marvin Gaye.
American publishing houses consistently snapped up the works of the famous British author, re-published them in cheap editions, which sold all over the country, and they pocketed the proceeds without any remuneration to Charles Dickens.
For many of us, the term “Easter egg” conjures up memories of dying hard-boiled eggs in bright colors or hunting for treasures and candies stuffed inside plastic orbs hidden around the neighborhood.
Each of us is creative. The key is to leverage that creativity, converting it into an intellectual property asset that enhances enterprise value.
This practice is often called the “Poor Man’s Copyright” and the idea has been around for a long time. The theory is that mailing a copy of a work to yourself will provide you with certain legal rights akin to a copyright registration so long as the envelope remains sealed and bears a postmark by the United States Postal Service.
Public Domain Day is celebrated on January 1st and commemorates the expiration of copyright protection for certain creative works. US copyright law provides the copyright owner with certain exclusive rights for a limited time, after which the works fall into the public domain.
Unlike the Matrix, Star Wars, and Austin Powers, respectively, Chat Generative Pre-trained Transformer, or ChatGPT, is not a robot in disguise or a bot of science fiction. We, the users, provide prompts in text form, and ChatGPT converses in response to the prompts.
Recently, we filed an application to register the copyright for Finny the Fish. In the United States, and in many other countries, copyright protection arises at the moment a work is fixed in tangible medium. So, why would we take the extra step to register Finny’s copyright?
With the 2022 midterms (almost) in the rearview mirror, political junkies are now free to turn their full attention to the 2024 presidential election. Today’s focus is on the tug of war that can occur when candidates play music at campaign events.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
