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NeverKink(R) garden hose by Teknor Apex – note US D499,465 in the lower left.
(c) 2020 J. Baron Lesperance, Esq.
I recently purchased a NeverKink® 25ft garden hose (by Teknor Apex Co.) to install on a hose reel that I use to wash cars. I enjoy washing cars, it gives me a chance to get some fresh air and also it makes the cars run better (I am sure of it).
After I removed the hose from its packaging, I noticed a US patent number. It’s not surprising for me to notice patent numbers after all, but then I noticed that the patent number was for a design patent, not a utility patent.
How did I know that?
US design patent numbers have a different format than non-design (utility) patent numbers. Both have US in front, but design patent numbers start with the letter D, whereas utility patent numbers have no letter just a number (currently the USPTO is moving through the 10 million number set).
Design patents protect the ornamental appears of an object – how it looks. Utility patents protect what the object does (its usefulness). However, the line between design patents and utility patents can be blurry – using this garden hose as an example.
The NeverKink® hose has a distinctive ornamental appearance when compared to other garden hoses that I have. As a result, a design patent was sought (and granted) to protect the unique appearance of this particular garden hose – US D499,465 (expired). (It should be noted that current law allows for continued patent marking of a product with an expired patent number so long as the patent covers the marked product.)
Why is this important?
Design patents can be obtained on what appear to be largely utilitarian objects, such as a garden hose. It may still be possible to obtain a utility patent on the construction of the garden hose, but the appearance of the garden hose may be as important to consumers as the construction of the garden hose.
Consumers may not actually care about the construction of the garden hose but may fixate on its appearance. Of course, if the garden hose performs as expected that is also a consideration but the initial buying decision may rest on the appearance of the garden hose.
Design patents typically grant in less time than utility patents and so can provide more rapid protection in the marketplace. Marking products with design patent numbers and then adding utility patent numbers provides layers of IP protection.
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