Can you get a patent on fashion in the United States?

Can you get a patent on fashion in the United States?

The fashion industry is a billion dollar industry.  Consumers are fickle and it is not always obvious what fashion items will be successful in the market place until a considerable amount of time and money is expended.  It takes a significant amount of time and money to bring a fashion item from the drawing board to the market place.  Frequently, when a fashion item is successful in the marketplace, the fashion item is quickly reproduced by copycats.  The copycats get all the benefit from the hard work of the creator of the fashion item, without the risk or cost.  How can a creator protect the time and money they have invested in their creations? The answer may be a design patent on the fashion item.

When people think of patents, they typically think of a utility patent.  A utility patent protects the way an item is used and how an item works.  It is difficult, time consuming and expensive to get a utility patent and while a utility patent is certainly worth the investment, it is unlikely that a utility patent will be granted on a fashion item.  Fashion items are typically attractive to consumers because of a style or design, not because of how the fashion item works.  And the ideas behind fashion items are typically so well known that it is difficult to find a new aspect to the idea which would not be obvious to people in the fashion industry.  For instance, if fashion designer comes up with a pattern for a dress, it would be difficult to demonstrate how the function of the pattern is different than all the dress patterns that have come before.

A “design patent” protects the way an article looks (35 U.S.C. 171). The ornamental appearance for an article includes its shape/configuration or surface ornamentation applied to the article, or both.  In a design patent application, like a utility patent, the claims of the patent define what the patent protects.  Both design and utility patents may be obtained on an article if invention resides both in its utility and ornamental appearance, but different protections are granted by each type of patent.  In a utility patent the claims relate to the design of article, in a design patent the single claim relates to the design for an object.  The design for an article consists of the visual characteristics embodied in or applied to an article.  Because a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.  Design is inseparable from the article to which it is applied and cannot exist alone merely as a scheme of surface ornamentation. It must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method.

A creator of a new design for fashion item could prevent copycats from using the creators design by getting a design patent on the design of the fashion item.  The creator of the fashion item would have to show that their design is original and ornamental to be granted a design patent.

A design patent application like a utility patent application is a complicated process which requires that the applicant show that they have invented a new design which meets the criteria for a grant of the application.  It is best to consult with a patent attorney to review all the details and come up with the best strategy to protect your intellectual property.