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Recent patent cases have made it more difficult to obtain utility patent protection for some of the functional aspects of computer software. One way to, at least partially, overcome this is to consider design patent protection for computer generated icons and certain aspects of the graphical user interface (GUI) elements of a computer program. Strategic use of design patents can be an important part of an overall patent strategy. It should be noted, however, that design patents are not meant as a replacement for utility patents, but rather, as a supplement to them.
Design patents cover the "new, original, and ornamental design embodied in or applied to an article of manufacture." Design patents can be obtained for computer generated icons, including GUIs and GUI elements. This is particularly important because a sequence of computer generated icons—including images that change in appearance during viewing—may be the subject of a design patent claim. This enables coverage, for example, for dynamic icons, a sequence of screen displays and more.
Where available, utility patents remain valuable. Strategically considered design patents are also a valuable component of an overall IP strategy. When assessing the patentable features of your software, design patents should not be overlooked.
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