March 18, 2005
The implementation of the European Directive offers a relatively simple and cost effective mechanism for designers worldwide to obtain protection for their designs in the European Union. Thus, instead of submitting a separate application in each of the 15 member countries, a designer can now submit a single application to obtain design protection throughout the Union. In the U.S., the requirement for protection under 35 U.S.C. § 171 is a new, original, and ornamental design for an article of manufacture. The requirement for protection under Article 4 of the European Directive is a new design that has individual character. While the requirements for obtaining a design patent are similar, the mechanics by which such a patent right is obtained differ greatly between the United States and the European Union. The U.S. provides a substantive examination of both novelty and nonobviousness, thereby treating the design patent application just as a utility patent application. The European Community Design is in effect a registration that does not undergo any substantive examination with respect to available prior art. In addition, the U.S. allows only one design to be claimed in each application, although a single design may include multiple embodiments illustrating an overall similar inventive concept. In contrast, a European Community Design application may include multiple designs. Regarding scope, special situations can arise in which the U.S. and European design systems yield different protection. Accordingly, it is not always in the best interest of the designer merely to submit to the USPTO what was submitted in the European application and vice versa. One special situation is the treatment of component parts under European law and U.S. law. In order to receive protection from a European Community Design, a component part must be visible to the end user during normal use of a complex product. U.S. law is broader in that visibility only at some point during the commercial life of the product is sufficient to qualify the part, i.e., the article of manufacture, for design protection. The European Directive also provides an Unregistered Community Design right that is effective immediately following the creation of the design without subsequent action on the part of the designer. The U.S. does not currently provide a similar right under the patent law system, but copyright protection may apply.