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In regards to Patent USD637920,

I'd like to make a digital watch with it's case similar to this one. How much different does my design need to be in order for it to be legal? Mine would be completly digital and and will be a smart watch with many functions as well. It's look like the picture I have attached. Is this enough of a change?

Isometric

Another angle

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2 Answers

It is hard to say. My observations are you have moved the watch face to an entirely different location and you do not have the prominent winder knob.

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My initial thought was: "But it's the same shape-ish." Clearly they can't patent and exclude any watches of that general shape though. But be careful, they may have a whole host of copyright, tradedress, design patents, unfair competition... type claims to throw at you if you piss them off :( –  Frank-n'Grind Dec 20 '13 at 19:08
    
More directly on point to your question: IIRC Egyptian Goddess v. Swissa case defines the standard for infringement of a design patent: the point of novelty test should no longer be used in the analysis for determining design patent infringement as it is inconsistent with the "ordinary observer" test to be applied (following Gorham v. White, 81 U.S. 511, 528 (1872)). However, the ordinary observer comparison between the patented design and the accused design can take into account the context of similar designs found in the prior art. –  Frank-n'Grind Dec 20 '13 at 19:10
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Egyptian Goddess v. Swissa case defines the standard for infringement of a design patent: the point of novelty test should no longer be used in the analysis for determining design patent infringement as it is inconsistent with the "ordinary observer" test to be applied (following Gorham v. White, 81 U.S. 511, 528 (1872)). However, the ordinary observer comparison between the patented design and the accused design can take into account the context of similar designs found in the prior art.

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P.s. you may want to consult with an actual patent attorney, preferably one who specializes in design patents (if there are such design pat attys) so that privilege will attach. Anything said in this forum will undoubtedly be misconstrued against you by the assignee of the mentioned Design Patent if they perceive you to be competing with them. Most sophisticated assignees likely have google alerts cluing them in when their patent numbers are referenced online. I'd assume, to be safe, that they've already read this page and are likely archiving it. –  Frank-n'Grind Dec 20 '13 at 21:04
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