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Startup Legal Lessons from the Biography of Steve Jobs (Part 4)

Walter Isaacson's bestselling biography of Steve Jobs touches upon numerous legal issues common to startups.

Walter Isaacson’s bestselling biography of Steve Jobs touches upon numerous legal issues common to startups.

This is Part 4 of a multi-part series examining the startup legal issues raised in Walter Isaacson’s biography of Apple co-founder Steve Jobs.  This post discusses how Apple has strategically used design patents to protect its user experience.

Throughout the Jobs biography, patents (both utility and design patents) are frequently referenced to show Apple’s innovation under Jobs. This prior post discusses the basics of design patents and how innovators are increasingly using design patents to protect the ornamental design of a product and therefore provide a competitive advantage.  Perhaps no company has been more effective at using design patents than Apple.  In fact, as of the Fall 2013, Apple has received over 900 design patents on its electronic products and over 30 design patents just on its packaging.  On page 347 of the Jobs biography, Isaacson describes how Apple would even use design patents to protect the packaging for its products.

One of the ways Apple has strategically used design patents is by filing multiple design patents on a single product.  Rather than seeking to claim the overall product design in a single patent, Apple focuses each patent on a discrete design aspect.  An example of this strategy can be seen in Apple’s protection of the design for the Apple Macbook Air.

Apple has used a series of design patents as part of its strategy to protect its ornamental design of the MacBook Air.

Apple has used a series of design patents as part of its strategy to protect its ornamental design of the MacBook Air.

Apple’s filed its first application for a MacBook Air design patent on January 4, 2008 and the PTO issued that patent, U.S. Patent D604,294, on Nov. 17, 2009.  While that patent has several figures, the following figure shows how this patent focused on the tapered clam-shell design of the MacBook Air:

U.S. Patent D604,294 focused on the tapered clam-shell design of the MacBook Air.

U.S. Patent D604,294 focused on the tapered clam-shell design of the MacBook Air.

The solid lines show required elements of the design where as the dotted lines show optional design elements.  Had Apple depicted the entire design with solid lines, a competitor could more easily evade the covered design by merely altering one aspect of the design.  Instead, Apple covers just a single aspect of its design in each design patent, and then seeks to cover the other aspects of the design in subsequent patents.  In the case of the MacBook Air, Apple filed numerous continuation design patents.

On Oct. 19, 2010, Apple received U.S. Patent D625,717 (claiming priority to the original filing date of Jan. 4, 2008).    This patent focused on the metallic color, the black keys, and the clam-shell shape of the computer.

Apple's U.S. Patent D625,717 focuses on the metallic color, black  keys, and clam-shell shape of the MacBook Air.

Apple’s U.S. Patent D625,717 focuses on the metallic color, black keys, and clam-shell shape of the MacBook Air.

Apple then received U.S. Patent D635,566 on April 5, 2011, which claimed the metallic color of the computer but made the color of the keys optional.

Apple's U.S. Patent D635,566.

Apple’s U.S. Patent D635,566.

Apple next received U.S. Patent D661,693 on June 12, 2012, focusing on the side port in the computer:

Apple's U.S. Patent D661,693 focuses on the side port.

Apple’s U.S. Patent D661,693 focuses on the side port.

Apple wasn’t finished.  On July 30, 2013 it received U.S. Patent D687,030.  That patent focused on the black keys and the appearance of the mouse pad.

Apple's U.S. Patent D687,030.

Apple’s U.S. Patent D687,030.

Note how most other features of the shape of the computer are not required elements of this claimed design.  Apple is likely not finished yet, and we will probably see another design patent on the MacBook Air design issuing in the next year.  While all of these patents likely receive the benefit of the parent patent’s filing date, Jan. 4, 2008, the 14 year term of the design patent starts to run upon issuance of each patent.  Contrast this with the 20 year term of utility patents that runs from the filing date of the first nonprovisional patent.  Accordingly, by filing continuation design patents in series, as Apple has done here, they can extend some portions of their design patent term because a new 14 year term starts to run upon the issuance of each new continuation patent (although that patent term will apply only to the specific design aspects covered in that new patent).

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