Design patents historically have been relegated to second-class citizen status in the world of intellectual property. To some extent that has been for good reason: because the merits of design patents are often considered in light of utility patents, the comparative scope of protection is substantially narrower and their importance subsequently discounted.
However, design patents are also substantially less expensive and easier to obtain than utility patents. Thus, although the difference in scope between the two is dramatic, that distinction should also be considered in light of the investment required. Recent guidance from the Federal Circuit in Egyptian Goddess Inc. v. Swisa Inc. gives reason to think that courts have perhaps been too stringent in design patent infringement actions and that, as a result, the protection afforded by design patents may be greater than previously believed.
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