- Joined
- Jan 15, 2006
- Messages
- 758
I have seen the "10% rule" cited several times but I cannot find anything official to support it. Can someone tell me where this comes from?
What I have learned is that it is not true that if a design is changed it cannot be protected by a design patent or a copyright. Any design could potnetially qualify for protection.
It appears that someone has said that if an alleged infringer makes changes to a protected design which changes roughly 10% of the overall design then there is no design patent infringement and no copyright infringement. That is totally wrong. There is no such standard in the law.
The standard for copyright infringement is whether the alledeged infringing work is "substantially similar" to the protected work. Each case of infringement is looked at on an individual basis and there has never been a single case decided where a fixed percentage of change was necessary to avoid infringement. As a practical matter, how could you possibly quantify that there is a 10% difference in a knife, wouldn't some features of a knife be given a greater weight than others?
Likewise, the standard for design patent infringement is similar to copyright infringement to a certain degree. Specifically, the standard is that there is infringement where, based on product appearance, an "ordinary observer" might buy the infringing product thinking it is the patented product (i.e. a confusion test) and this occurs because the "points of novelty" in the patented design have been incorporated into the infringing design. There is no set percentage of what can and can't be changed.
The standard is probably more similar to that of trade dress infringement, whether a consumer would be confused thinking the products were sold by the same source and/or thinking the sale was somehow related. The test for intellectual property right is a subjective one (meaning each case is taken on it's own facts). There is no objective test for infringement and no set standard/percentage of changes that will prevent infringement from taking place.
