What is the meaning of broken or dashed lines in a design patent?
While I’m not sure if you can call it a loophole, US design patents enable a particular option in the drawings that can potentially broaden protection. The use of dashed lines, or broken lines, in design patent drawings means that whatever is drawn in such lines is not claimed. In a US design patent, the claimed design comprises what is drawn in solid lines. This unique option of US design patent law gives applicants some flexibility to show certain parts of a product without claiming those parts. The dashed line feature also enables an applicant to show the environment or context surrounding the claimed design by illustrating, but not claiming, what is external.
How can dashed lines broaden design patent protection?
Dashed lines provide design patent owners with an argument that an accused product infringes even though certain parts of the product look different than what is shown in the design patent. Do the visual differences between the accused product and the patented design primarily consist of parts shown in broken lines in the design patent? Are the visual similarities between the accused product and the patented design primarily captured by what is shown in solid lines in the design patent?
Should you use broken lines and, if so, where?
By asking questions as to what competitors might change, a design patent applicant may consider showing certain components in broken lines in the design patent figures. For example, here are some helpful factors to consider:
- Does the product have any functional features or structures that do not contribute to the unique design?
- Should any external or internal borders be shown in dashed lines?
- Are there any holes or openings that do not contribute to the unique design?
- Does the product hold, support, or attach to any external structures that should be shown in broken lines?
- Would it make sense to reduce the clamed design to a certain component of an overall product or assembly?
- Is the unique design a two-dimensional graphic artwork placed on a three-dimensional product or article (e.g., GUI)?
- Is the unique design combined with other features or structures that are not invented by the inventor(s)?
- Would it make sense to create a new fictional boundary (by using dashed-dot lines) that does not exist in the actual product?
When should you not use dashed lines?
If a new US design patent application will claim priority to a foreign design application, consider whether the foreign priority application contains any dashed lines. Each foreign country has its own patent laws which may or may not allow for broken lines in design patents. Due consideration should be given to whether the introduction of broken lines in a US design patent application may affect the priority claim to a foreign priority application that omits broken lines.
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