Clearing Up the Difference Between Utility Patents and Design Patents – Neither Is a Monopoly

Stuart K. Hayashi

 

A common misunderstanding is that a patent is a claim of ownership over the general idea for an entire product category. According to this misinterpretation, someone gaining a patent on her electric can-opener amounts to the government proclaiming that she now owns the  vague idea of “electric can-opener.” The same would happen if she gained a patent on her paperclip. From this comes a second misunderstanding, that the patent confers upon its owner a government-enforced monopoly over an industry. The patent holder would then be able to sue any other vendors who produce, without her permission, their own electric can-openers and their own paperclips. Worse, the patent holder would be able to sue these competitors successfully even if they arrived at their own designs independent of any observation of the patent holder’s model. 

 I have disputed those misunderstandings in previous blog posts (1, 2,3, 4, 5).

A patent is on a specific design of a feature or function of a product and does not impose a State-enforced monopoly on an industry or product category. A vendor can compete against any patent holder by coming up with a design that is similar but is not an exact duplicate.

Still, sometimes I get yet another response. This one comes less often from libertarian anarchists opposed to patent rights and more often from more commonsensical people who recognize the need for some form of intellectual property. The response is that there are two types of U.S. patents — design patents and utility patents. According to the rejoinder, it is true that a design patent is merely on a specific design only. However, the rejoinder continues, a utility patent really is a claim of ownership over a general idea, and it does grant its owner a government-enforced monopoly over an industry.

It is true that there are both design patents and utility patents. And it is true that there is a distinction between them. However, the distinction provided above is not accurate. Rather, the  purported distinction above comes from a misunderstanding of what a utility patent truly is and a misunderstanding of the extent to which enforcement of utility patents can be broader than it is for design patents.

In the end, both design patents and utility patents provide protection for a specific design feature. Neither claim ownership on a whole product category or industry.

I now will attempt to provide a more accurate explanation of the difference between design patents and utility patents. I will also try to explain how the mistaken conclusion that a utility patents provides its owner a monopoly originates from a misinterpretation of this distinction and of how utility patents are defined.

 

Design Patents
Design patents are on specific features directly observable by the senses. That is, for you to infringe on my design patent, units of your product have to resemble mine very closely in terms of how they look, feel, etc. For that reason, design patents are usually used to protect a design’s aesthetic qualities. One example is the design patent awarded to George Lucas for his Boba Fett action figure.

Note that the U.S. patent number is US  D264,109 S. The D following the US is important. By the end of the essay, we will return to why that is.

That a design patent is about protecting properties of the design that are readily perceptible is also visible in other instances. Consider the ones recognizing fashion-apparel-and-lifestyle mogul Ralph Lauren’s ownership over this cologne bottle and this bed. Their U.S. patent numbers are, respectively, US D 259,098 S and US D 319,932 S. 

Its sculptor, Auguste Bartholdi, even applied for and received a US design patent on the Statue of Liberty. That is US D 11,023.

It was not that Auguste Bartholdi expected that the U.S. federal government would enforce some monopoly on giant statues. Rather, suggests Kelsey Campbell-Dollaghan in Gizmodo it was that to finance the completion of the statue, Bartholdi sold small replicas of it as souvenirs. He did not want knockoffs of it being sold when he needed to recoup his investment. This is, again, because the design patent is intended to restrict the copying of the product’s aesthetic qualities rather than its operation and functionality. the 

Once again note the D subsequent to the US. That is a trait common to all U.S. design patents. You will notice a different numbering convention for U.S. utility patents.

 

Utility Patents
Speaking of which, a utility patent protects a specific design feature with respect to a unit’s practical functionality — its utility, hence the name. What is being protected is a specific combination of engineering principles as applied to a particular design feature in the utility patent.

As principles are more abstract than the appeal to the senses that are readily observable in a design patent, the aspects of a design that a utility patent protects can be interpreted more broadly than what is typical for a design patent.

As examples of utility patents, I will provide two that Jack Northrop had on his airplanes that were “all wing.” 

These patents on his airplanes did not award Northrop a government-enforced monopoly on the production of airplanes. What these patents did mean was that Northrop had civil recourse if the totality all the engineering principles he employed were being copied by yet another vendor against his consent.

Two patents Northrop had on this sort of product were US 2,406,506 A and US 2,650,780 A.

Note the absence of a D after the US in the U.S. patent number.

That is how, just by looking at the U.S. patent number, you can tell if it is a design patent or a utility patent. For design patents, there is a D or Des. directly following the US (see here for Des. appearing). For utility patents, that is not present.

 

Evidence That a Utility Patent Is Not a Monopoly
This is the summary. The protected design attributes of a design patent can be readily perceived by the senses. To determine if a vendor peddled a knockoff of the cologne bottle on which Ralph Lauren had a design patent, all you need to do is look at both Ralph Lauren’s cologne bottle and that other vendor’s. Ditto in instances where George Lucas accused a vendor of producing unlicensed knockoffs of the Boba Fett action figure. Most often, the desired effect of the design protected by a design patent is an aesthetic or artistic one.

By contrast, the protected design attribute of a utility patent is its particular arrangement of parts in order to employ specific principles of science and engineering. And the effect is a practical one. The effect of the design protected in a utility patent is one of utility. Because the engineering principles specified in the utility patent are more abstract and less readily observable than what is found in design patents, there is greater room for interpretation when it comes to how courts decide if someone’s utility patent has been violated. More often than with design patents, engineers and other experts with specialized knowledge pertinent to the industry in which the invention is used must be called upon to determine if a utility patent is infringed. This is why enforcement of utility patents are usually broader than it is with design patents.

And that a utility patent can be interpreted more broadly than a design patent is where the confusion comes from. The confusion becomes the misconception that a utility patent does give the holder of a utility patent a monopoly on an entire industry.

But here’s the reality. Below is a table I made of U.S. utility patents on electric can-openers. 

Note that the interval between every new U.S. utility patent on electric can-openers and the previous one is shorter than 17 years. That is, every U.S. utility patent listed was issued prior to the expiration of the previous one. That happened even though all of these are US utility patents on “the electric can-opener.” That is because no US utility patent ever gave a party a State-enforced monopoly on the whole product category or industry of “electric can-openers.”

We find the same pattern in U.S. utility patents for paperclips, another invention for which I made a similar table.

Despite utility patents being interpreted more broadly than design patents in the matter of enforcement, having a US utility patent does not give any party a monopoly on the general idea of for a whole product category. It is not a government-enforced monopoly over an industry.

On Friday, November 19, 2021, I added the section about the U.S. design patent on the Statue of Liberty.

Being ‘Free’ to Transmit COVID Unrestricted Is the Actual Imposition Forced on Others

Stuart K. Hayashi

Sometimes the local Honolulu news will cover some self-deluded people. Some of these people spread conspiracy theories that deny the scientific evidence about COVID-19. Many more of these people reject, out of hand, the very idea of there being necessary rules to prevent the spread of this disease.

Every time such people appear on the news, I brace myself anxiously. In several instances, as I anticipated, among these self-deluded people are ones I have met at free-market libertarian meetings. At the time, those people seemed sane and I was friendly with them. Material such as this and this fills me with sadness and regret.

As have they, I am experiencing culture shock in adjusting to the rules that mitigate COVID’s spread. I never liked wearing a surgical mask. But unlike those acquaintances of mine, I recognize that this aversion to culture shock does not justify acting on motivated reasoning to rationalize this hatred for such rules.

I do have qualified qualms about such rules coming on from the top down in a command-and-control, one-size-fits-all fashion. In a political system closer to the one I favor, this would be the alternative. Insofar as contact tracing can be used to prove a case, a household that contracts a dangerous pathogen from an unvaccinated party should be able to hold that unvaccinated party liable for it.

A party that refuses a vaccine that is readily available is a party that cuts its own costs and imposes those costs on other people in the form of posing a danger to them. The victim suing the unvaccinated transmitter for damages simply transfers those costs back to the unvaccinated party.

When it comes to COVID, civil liability should also apply to businesses where large crowds gather. If a business allows for a gathering of twenty or more people at once, then that business should be held civilly liable if contact tracers find that someone contracted COVID from an event that the business hosted. No matter what excuse that business’s owner makes, the legal doctrine of Strict Liability should apply.

In my estimation, those are the ideal remedies. But, absent of my proposal being adopted, the next best alternative is indeed for the government to have these top-down, command-and-control rules to mitigate COVID’s spread. I mean mask mandates, vaccine mandates, and often even stay-at-home orders. These rules are a wiser alternative than what many of these COVID-deniers seem to want: for there to be no COVID rules, just as life was in late 2019, and for them to be “free” to go around and transmit COVID with impunity.

Can COVID restrictions go too far? Can there be unreasonable ones? Yes, there can be. Of course a COVID restriction cannot be inherently above any criticism or call for amendment. Robert W. Tracinski noted last year how Michigan’s governor Whitmer

issued a confusing and highly intrusive executive order that required stores to rope off sections containing “nonessential” items, banned travel between households, and banned landscapers from working. The chief complaint is that Whitmer banned activities based on how “essential” or “nonessential” she deemed them to be, rather than on whether they could be conducted safely.

One can reasonably criticize specific measures as being poorly thought out or poorly implemented. It is entirely misguided, though, to pronounce — as too many self-proclaimed Objectivists and free-marketers have — that the COVID-19 restrictions are wrong or unjust in principle, as if everything would be better if there were no more such rules than there were in early 2019. 

As the transmission of fatal pathogens is indeed an initiation of force, it is legitimate that government force be used to counter that spread. The issue is how government force can be used most properly. It is foolish to pretend that it would be preferable if the government did nothing about this.

This should not be so difficult for self-proclaimed libertarians and free-marketers to understand. It’s common for them to say, “In our ideal world, all roads would be privately owned. And the private owner of the road would set the rules for it, such as how fast people may drive on it. But as long as roads are controlled by the government, the government should have these command-and-control speed limits and laws against drunk driving.” The same principle applies to curbing the advancement of COVID contractions.

It likewise applies to the issue of pollution. Much of the air and most waterways and other water resources are government-owned. This collectivism disincentives people from taking care of such resources. In a purely capitalist society, these resources would be private belongings of various parties. If a company polluted the air or water of a privately owned spaced, the private owner would have every incentive to sue the polluter for damages.

But absent of this pure privatization, there should be these top-down, command-and-control laws that limit the pollution of the air and water. That is better than the air and water resources remaining publicly owned combined with industrial plants being able to pollute them “freely.”

COVID rules can become too overbearing. But the same can occur with traffic laws and pollution reduction. Incompetent legislators could pass many traffic laws so severe as to make life nearly impossible for motorists. Likewise, top-down command-and-control pollution regulations can become onerous to the point where they drive industrial production to a halt.

But, again, if a purely individualistic privatization solution cannot gain political favor, the next best alternative is not to repeal all traffic laws and all anti-pollution measures. It is to have these laws renegotiated and rewritten so that all parties’ concerns can be addressed more adequately. That is how it should be with COVID rules.

Nor it is practical simply to say, “Stay-at-home orders should apply only to the elderly.” No, the elderly are protected to the degree that COVID rules apply to everyone.

I still support free enterprise. Free enterprise does not include “freedom” from rules to protect people from COVID. When I hear denials of reality from so many libertarians and Objectivists whose judgment I had previously trusted, I feel ashamed.

A LibertarKaren on Twitter: “You don’t have a right to be free from respiratory viruses.”

My reply:

Actually I do have the right to use State force to obstruct you from transmitting a fatal pathogen to others. That is just as I have a right not to be run over by a drunk driver and not have my drinking water accidentally poisoned by an industrial plant. https://t.co/TSOpV5OyRT

— $tuart K. Hayashi🌎💱 (@legendre007) September 10, 2021

My friend Pablo Wegesend, another Hawaii resident, is right on. 

 I like ideas for libertarian things like entrepreneurship... I’m against the War on Drugs. I’m against any government’s war on consensual activities of adults. “Consensual” is the word. I don’t consent to have a contagious virus spread to me. ... This [the set of COVID rules, contrary to recent hyperbole] is not Nazi Germany. This is not living under the Taliban. ... Cases are going up. Take it seriously.

 

On September 28, 2021, I added the links to the regrettable COVID-denialist postings on Instagram from fellow Hawaii residents.