QUESTION: What is the limit of protection from a design patent? For example, if you design an office waste basket in the shape of a bird, and have this design patented, what can your competitors do legally. Can they still make a similar waste basket if they slightly modify the design of the bird? Or would this be a violation against your patent? I appreciate your time and input. Thank you!!
ANSWER: Design infringement occurs when the allegedly infringing device is substantially the same as the design patent, when viewed by an ordinary observer. Unfortunately, the infringement test is not based on an amount of difference (e.g., slight).