Design Patent Question -- Well Known Puzzle Concept, Different Design Elementals

[長町]

I have a general question about design patents, which I suppose will basically apply to any country or jurisdiction.

Suppose there is a ubiquitously well known puzzle, something like the Rubix Cube or Instant Insanity (https://en.wikipedia.org/wiki/Instant_Insanity), and someone applies for a design patent on the same puzzle, the same concept, but modifies the colors or the designs applied to the specific facets of the puzzle.

So, for example, suppose somebody took the Rubix Cube, and decided that different colors, or different textures or shapes, or different images (e.g., one face with rock stars, one face with dogs, one face with cats, etc.), and suppose there were no novelty objections against it, would that be patentable as a design patent? Or would the original Rubix cube be defeating prior art?

It seems to me it should not be patentable, even as a design.

What would be the arguments on both sides? Are there any presidential decisions on this topic?

Just on a moral level, it seems wrong that a design patent should be granted in such a case, even if there were individual design features that might seem novel and non-obvious in isolation, the background on which all of this is painted is a well known age-old concept, which subsumes the majority of what the idea is.

Some help, some ideas and direction, would be greatly appreciated.

[Tim Jackson]

On Wed, 1 Nov 2017 08:01:42 -0700 (PDT), ?? wrote...

Post by 長町
I have a general question about design patents, which I suppose will basically apply to any country or jurisdiction.

Outside the USA, most countries don't call them "design patents". A
more usual name is "registered design". The reason I mention that is
because it can lead to misunderstandings if you think of them in the
same way as patents for inventions ("utility patents" as they are called
in the USA).

Registered designs / design patents only protect the novel *ornamental*
aspects of a product; its appearance, not its function or construction.
So they are quite distinct from patents for inventions or utility
patents. If you keep that distinction in mind, it should answer your
questions below.

Post by 長町
Suppose there is a ubiquitously well known puzzle, something like the Rubix Cube or Instant Insanity (https://en.wikipedia.org/wiki/Instant_Insanity), and someone applies for a design patent on the same puzzle, the same concept, but modifies the colors or the designs applied to the specific facets of the puzzle.
So, for example, suppose somebody took the Rubix Cube, and decided that different colors, or different textures or shapes, or different images (e.g., one face with rock stars, one face with dogs, one face with cats, etc.), and suppose there were no novelty objections against it, would that be patentable as a design patent? Or would the original Rubix cube be defeating prior art?
It seems to me it should not be patentable, even as a design.
What would be the arguments on both sides? Are there any presidential decisions on this topic?

Since a registered design / design patent is only concerned with the
appearance of the product, not the functional aspects, then what counts
is just the novelty of its appearance. It's irrelevant whether the
function and construction are novel, since it's not going to give any
protection for those aspects.

Post by 長町
Just on a moral level, it seems wrong that a design patent should be granted in such a case, even if there were individual design features that might seem novel and non-obvious in isolation, the background on which all of this is painted is a well known age-old concept, which subsumes the majority of what the idea is.

It doesn't subsume the idea behind the age-old concept, since it's
giving no protection for that. So there's nothing immoral about it. It
doesn't stop anybody from making the same puzzle with completely
different ornamentation, or with no ornamentation.