The Crafts Report - Leading the Crafts Industry for 35 years

Is your craft eligible?
Because crafts are largely rooted in utilitarian traditions, many common forms of craft are not eligible for copyright protection. Examples include clothing, vessels, handbags and furniture. Sometimes portions of a craft can be protected by copyright if the design of a work has pictorial, graphic or sculptural features that can exist independently of the utilitarian object. For example, the general shape and structure of a shirt would not be eligible for copyright protection because shirts are considered utilitarian objects. However, the pictorial design or the fabric pattern could be protected. Likewise, a teapot would generally not be protected by copyright although a glazed pattern or a highly sculptural element attached to the teapot might be. In many cases, the line between utilitarian and artistic is difficult to discern and depends on the degree to which the aesthetic choices are independent of the functional concerns. Thus, a traditional basket of a basic Nantucket or Shaker design would not be protected by copyright because their designs reflect the functional purpose of vessels, but a contemporary sculptural basket might be protected if it clearly served no other purpose than as a work of art.

Patents can often be used to protect designs not eligible for copyright protection. The key elements to patentability are that the invention must be novel and not obvious. Novelty means that no one else has come up with the invention before you did. Obviousness means that a person having ordinary skill in the relevant field would know how to solve the problem at which the invention is directed by using exactly the same method or device. In the United States, you have a one-year grace from the first offer of sale, publication or public use in which to file a patent application. If you wait longer than that, you have lost your eligibility to obtain a patent. However, in most countries you are barred against obtaining a patent if you sell or publicly use the invention before filing a patent application.

Patent types
The two kinds of patents that are of interest to the crafts field are design patents and utility patents. Design patents protect the ornamental design of a utilitarian object and prohibit others from making or selling substantially similar copies. Utility patents protect the functional aspects of an object or the method of making it. In some cases, utility patents can protect concepts that involve the use of ornamentation. For example, a patent was issued to an inventor for a combination display consisting of a plastic sheet that emulated a ghost placed over a plastic bag filled with leaves and a plastic bag filled with leaves that emulated a jack-o’-lantern. The ornamental design of the jack-o’-lantern bag was also protected by separate design patents.

Obtaining a patent
Obtaining a patent is a complex process that requires filing an application with the United States Patent and Trademark Office (USPTO) and establishing your entitlement to be issued a patent. Once a patent has been issued, it can be enforced to prevent others from using the invention. Likewise, you can also license patent rights to other entities. A patent will ordinarily last for a term consisting of 20 years after the date the application was filed.

If you believe that you have a patentable invention, usually the first step is to have a patent search performed to ensure that someone else has not invented the matter before you or that your invention is not an obvious extension of the prior art. The next step is to prepare and submit a patent application to the USPTO.

Patent applications can be difficult to prepare and are subject to numerous legal requirements and therefore are usually prepared by a patent attorney or agent. After the application is submitted, it will be examined by the USPTO and ordinarily some response or amendments will be required before the patent is deemed ready to issue. The process typically takes about 14 months for a design patent and from two to four years for a utility patent. Once the USPTO issues the notice of allowance, the patent owner must pay an issuance fee and thereafter pay periodic maintenance fees.

Infringement
Federal law defines infringement as making, using or selling any patented invention within the United States during the term of the patent without the permission of the patent owner. Should someone infringe on your patent, you have a right to sue for an injunction against further sales or usage, and also to recover compensatory damages. In egregious cases, a court can also award treble damages and attorney fees. Like copyrights, lawsuits to enforce patents must be filed in federal court. Damages in patent cases are generally recovered as a royalty based on the usage, or in some cases, as the lost profits. In situations where a patented work is knocked off in a major way, the damages can be significant.

Whether a design patent has been infringed on is judged by looking at similarities and differences between the two objects to determine if there is sufficient overall similarity. The test is judged by the standard of whether an ordinary observer such as a retail purchaser would likely believe that the infringing object is the same or nearly the same as the patented design. In other words, the comparison is not done by the standards of an expert in the field but rather by standards of regular consumers. This means that a cheap copy of a mass-produced craft object with a lower standard of crafting materials is still infringing if the overall ornamental features are substantially similar.

The infringement of a utility patent is assessed differently than for design patents. The scope of a utility patent is evaluated by the claims, which are a concise written description of the elements constituting the patentable part of the invention. To constitute infringement, each of the elements set forth in a claim must be present in the allegedly infringing method or device. It does not matter if the accused device or method has additional elements. For example, a claim that reads “a stool comprising three legs” would be infringed on by a stool with a seat and four legs because a stool with four legs necessarily has three legs as well.

Costs and fees
Obtaining a patent can be expensive because of the filing fees and the costs associated with preparing the application and associated drawings. The total costs typically range between $1,200 and $1,500 for a design patent and $5,000 and $10,000 for a utility patent. Therefore, an important consideration in deciding whether or not to seek a patent is the prospect for benefitting economically. Just because an invention is patentable does not mean that it is economically viable. Some other factors to consider when considering whether a patent is worth pursuing are: Is your product likely to be pirated by others? What is the cost and functionality of the competing products? What is the likely price and demand for the product or method for which a patent is being considered? Keep in mind that patents are a property right and the USPTO does not issue them in a casual manner. If a patent examiner finds that there is prior art indicating that you were not the first inventor, your application will likely be rejected. It is generally recommended to conduct a patent search and obtain a patentability opinion before filing an application. That way, you can assess your prospects of obtaining a patent without having to invest in the full cost of filing and prosecuting a patent application.

It is highly recommended that you seek intellectual property protection of your works whenever feasible. As noted above, copyright reg­is­­tration is the favored means because it is relatively fast and inexpensive when compared to obtaining a patent. Likewise, it is often easier and less expensive to enforce a registered copyright than it is to enforce a patent. Nonetheless, patent protection can be very valuable when it covers a product that could potentially be knocked off in a big way but is not eligible for copyright protection.^TCR

Bert Krages (krages.com) is an intellectual property attorney in Portland, Ore.