Left: Salvador Dali, Téléphone-homard (Lobster Telephone), 1936, Metal, plastic, and plaster, 30.5 x 18 x 12.5 cm, Museum für Kommunikation, Frankfurt. Right: The Mae West Lips Sofa (1937) is a surrealist sofa by Salvador Dalí. The wood-and-satin sofa was shaped after the lips of actress Mae West, whom Dalí apparently found fascinating. It measures 86.5 x 183 x 81.5 cm (34 x 72 x 32 in). (註18)
“While utility and design patents afford legally separate protection, the utility and ornamentality of an article may not be easily separable. Articles of manufacture may possess both functional and ornamental characteristics.” (1502.01 Distinction Between Design and Utility Patents [R-11.2013])
Utility Model 非為了解決此二分法問題而存在,時間與成本也是選擇因素。
世界智慧財產權組織(WIPO)對 Industrial Design 的解釋為:“An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color. Industrial designs are what make a product attractive and appealing; hence, they add to the commercial value of a product and increase its marketability.” www.wipo.int/designs/en/
美國工業設計師協會(IDSA)對Industrial Design 的解釋:“Industrial design (ID) is the professional service of creating and developing concepts and specifications that optimize the function, value and appearance of products and systems for the mutual benefit of both user and manufacturer.”www.idsa.org/what-is-industrial-design
“In determining whether a design is primarily functional or primarily ornamental the claimed design is viewed in its entirety, for the ultimate question is not the functional or decorative aspect of each separate feature, but the overall appearance of the article…” (1504.01(c) Lack of Ornamentality [R-08.2012] I. FUNCTIONALITY VS. ORNAMENTALITY)
“Design is inseparable from the article to which it is applied, and cannot exist alone merely as a scheme of ornamentation.” (15.44 Design Inseparable From Article to Which Applied)
“In a design patent application, the subject matter which is claimed is the design embodied in or applied to an article of manufacture (or portion thereof) and not the article itself. “[35 U.S.C.] 171 refers, not to the design of an article, but to the design for an article, and is inclusive of ornamental designs of all kinds including surface ornamentation as well as configuration of goods.” Since 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.” (1502 Definition of a Design [R-08.2012])
“The design for an article consists of the visual characteristics or aspect displayed by the article. It is the appearance presented by the article which creates an impression through the eye upon the mind of the observer.” (1502 Definition of a Design [R-08.2012], 15.42 Visual Characteristics)
“While ornamentality must be based on the entire design, “[i]n determining whether a design is primarily functional, the purposes of the particular elements of the design necessarily must be considered.” Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 240, 231 USPQ 774, 778 (Fed.Cir. 1986). The court in Smith v. M & B Sales &Manufacturing, 13 USPQ2d 2002, 2004 (N. D. Cal.1990), states that if “significant decisions about how to put it [the item] together and present it in the marketplace were informed by primarily ornamental considerations”, this information may establish the ornamentality of a design.” (1504.01(c) Lack of Ornamentality [R-08.2012] I. FUNCTIONALITY VS. ORNAMENTALITY)
“Computer-generated icons, such as full screen displays and individual icons, are 2-dimensionalimages which alone are surface ornamentation.” (1504.01(a) Computer-Generated Icons[R-11.2013], 1500-14)
“The images are understood as viewed sequentially, no ornamental aspects are attributed to the process or period in which one image changes into another.” (IV. CHANGEABLE COMPUTERGENERATED ICONS, 1500-16)
“A determination of ornamentality is not a quantitative analysis based on the size of the ornamental feature or features but rather a determination based on their ornamental contribution to the design as a whole.”