What is patent protection and how can it protect clothing?
What is a patent and how can it be of use to clothing and fashion? There are two types of patents that an inventor can obtain; a utility patent and a design patent. At its core, a patent is a property right in an invention and the patent gives the inventor the right to exclude others from making, using, selling offering for sale, and even importing the claimed invention, so it is a very strong form of intellectual property protection. Patent protection, unlike Trademark protection, is limited in term.
A utility patent is a patent that protects inventions of functional things. In order to patent something, your invention must be new or novel to the world, it must be useful, and it must be non-obvious. The useful prong is a relatively low barrier, meaning the invention need only provide a minimal useful component (making life just a TINY bit easier will suffice).
A utility patent lasts for 20 years from the date of filing, but it quite often takes around 2 years from the filing date for a patent to actually be approved by the Patent and Trademark office. Filing a utility patent is very costly as well, including the research and drafting of the patent and exactly what the patent covers (these are called ‘claims’). Some portions of jewelry can be protected by utility patents, such as clasps, and even zippers. In fashion, performance fabrics may obtain utility patents, or even unique shoes, like the Nike "automatic lacing system" sneaker.
Here's another example of a utility patent that Under Armour secured for a performance shoe.
Combine the 2 year average of obtaining a utility patent, as well as the costs (hovering around $10,000 for a patent filing + attorney fees) a utility patent is not ideal for products that are trendy. By the time a patent is approved, such a trend could be long gone.
A design patent is a little different and sometimes easier to obtain. A design patent protects useful articles, but it protects aesthetic or ornamental aspects, so they protect things that are both functional and aesthetically pleasing. This is helpful to designers.
Lululemon is known for obtaining numerous design patents for its workout gear. Lululemon brought an action against Calvin Klein for infringing one of its design patents for a product it calls the "Astro Pant." Here is the design patent for Lululemon's pant. Note the different under claim, as it says "the ornamental design" for pants, indicating the design patent.
Design patents only last for 15 years, but the United States Patent and Trademark Office may award design patents within 12 months or sooner, making this protection better suited for trendy items
Patent protection should certainly be on the minds of designers and creators when faced with an innovative, classic concept!