Google Granted Design Patent on Search Webpage

By Gene Quinn
September 3, 2009

On Tuesday, September 2, 2009, the mighty 1600 pound gorilla in the room, also known as Google, was granted a design patent on the look of its search webpage found at Google.com.  Yes, the United States Patent and Trademark Office awarded Design Patent No. 599,372 to Google just days ago on an application that was filed on March 6, 2006, and which was a division of an earlier filed Design Patent application filed on March 26, 2004.

What this means for Google is less important than what it means for everyone else who has a website.  If Google is allowed to protect its webpage through the acquisition of a design patent then everyone could and should seek to obtain a design patent on their webpage. Design patents had been thought to be tremendously weak and not worthwhile unless obtained in bulk, but all of that changed a little less than a year ago when the Federal Circuit issued its decision in the Egyptian Goddess case. The Federal Circuit changed the design patent infringement test from one that focused only on whether the accused infringer copied the novel aspects of the design to a test that looks at the totality of the design and the totality of the accused infringing product. That being the case, it is now much easier to prove design patent infringement and design patents should be in every patent portfolio. They are cheap to obtain, typically costing in the range of $3,000 from start to finish. Design patents can typically be obtained in 8 to 9 months now, and they are now formidable rights thanks to the Federal Circuit Egyptian Goddess ruling. Obtaining a design patent is an economical way to ward off competition and copyists. If you are a website designer or you design website templates or wordpress templates you really need to apply or a design patent on your new designs.

The design patent protection obtained by Google here certainly overlaps with other forms of intellectual property protection Google already owns.  It would be a tremendous stretch of the imagination to believe that anyone starting a search engine would be allowed to copy or even nearly copy the design of the Google search page.  If you were to design a search page that looked like Google’s page they would have been able to bring a federal complaint based on 15 U.S.C. 1125(a), which relates to the creation of consumer confusion.  Under trademark law theories you can prevent others from engaging in activities that would likely lead to consumer confusion.  You do not have to actually prove confusion, just that there is a potential for confusion, and it seems likely that anyone getting too close to Google would have been able to be stopped already.

Google may also have some trade dress protection as well, although trade dress protection gives the owner the ability to prevent others from getting to close to the so-called “look and feel” of what the owner of the unique trade dress is doing.  Trade dress is the totality of elements in which a product or service is packaged or presented. These elements combine to create the whole visual image presented to customers and are capable of acquiring exclusive legal rights as a type of trademark or identifying symbol of origin. Because trade dress includes all factors making up the total image under which a product or service is presented to customers, it potentially covers almost all aspects of appearance. Things that have been held protectable under the category of trade dress include: (1) the shape and appearance of a product; (2) the shape and appearance of a container; (3) the cover of a book or magazine; (4) the layout and appearance of a business establishment such as a restaurant; (5) the theme and look of a line of greeting cards; and (6) the recognizable shape of an automobile.

With respect to the Google situation, an argument could be made that there is a lack of trade dress I suppose, given that the Google search page is the antithesis of cluttered.  The Google search page being largely characterized by white space and wide open design might not lend itself to much, if any, trade dress protection.

Typically that which may be protected through trade dress and that which may be protected via patent are mutually exclusive because the United States Supreme Court has stated that trade dress cannot protect functional aspects. To the extent that there are functional aspects trade dress protection is inappropriate, and any protection provided must be the result of patent protection. This recognizes that the law awards patents for a limited time and if there is a functional aspect to what is being protected then it must fall into the public domain within a limited time. As with trademarks, trade dress can last forever, so there is little real overlap between trade dress and patents, or at least utility patents. Here where the design of the webpage is being protected the protection attaches to the look, not the function of the Google searching software.

This could usher in a new form of gold rush on the Internet, and if you have a unique design you really should consider getting in on the new, improved and worthwhile protection offered by a design patent.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 10 Comments comments.

  1. New Here September 3, 2009 5:26 pm

    Problems and more problems over stupid things as example I used a 3px border around my input in a groupbox at the right of my page, that was too close to some, yes is ugly, “patent-mill” claim to it, even though with the knowledge so many have used such, and many more design/design elements over and over again for many years …I have a problem !. I hope that soon the USSC will end this, in my opinion, mouse trap, of software patents in all forms because such patents and some others remove from the public use, what is otherwise “open standards”. Webpages today are more, the technology makes them able to run on a computer(server), and are software in that respect in my view. Html, Java, Javascript and the rest have much (function)removed from use by patent claims, having some step on the trap, over what is made available to them in books and on the internet (function)to use !. Design patents, to be fair, should be limited to those as, Microsoft, UPS, FedEx and yes, Google, but not everyone that wants to see what they can get away with, that makes problems in the future. Hay, to think about it, I see here on IPWatchdog a, …never mind !.

  2. Noise above Law September 4, 2009 6:31 am

    Someone, anyone, please help New Here learn how to structure sentences into complete and coherent thoughts.

  3. New Here September 4, 2009 8:50 am

    Noise-
    I find your comment funny as I believe you’re just making a pick because nothing else to do ?. …sad.

  4. Noise above Law September 4, 2009 10:44 am

    I find your comment sad, as you do not seem to care that you write in an unintelligent manner. It is as if you don’t care that you are understood and that you simply want to blather on.

    THINK before you type. THINK after you type.

  5. Gene Quinn September 4, 2009 10:52 am

    New Here-

    I have absolutely no idea what it is that you are trying to say. You seem to have typed random thoughts that simply make no sense, as if you are writing in a different language and then translating that using a really poor translator.

    I am not trying to guess what you are saying. Please try and write in a coherent and understandable manner, otherwise I am going to have to delete your comments.

    -Gene

  6. New Here September 4, 2009 11:51 am

    Gene-

    from the context of the topic, I did believe that the start of the comment would be understood, though not in the best form I agree, there is a point there and does not run on. I tie things together true, random no, my thinking follows through in my comment. The comment starts off the line as most of what I comment on does, thats me and I offer nor promise more here because in talking to many people as I do seems they have less of a time understanding my thoughts. Gene if you find my comments must be deleted ?, do so because I find that more desirable. Space is important here, I would say delete this whole matter from here and start this topic over clean.

  7. John September 9, 2009 1:34 pm

    I looked at the wayback machine and the google web page was on public display several years before the priority divisional was filed.

    I thought you only got a one year grace period for public display before the concept becomes un-patentable?

  8. Gene Quinn September 9, 2009 3:35 pm

    John-

    That should indeed be the case. I will look into that further myself.

    -Gene

  9. Noise above Law September 10, 2009 5:28 am

    General consensus is

    Utility Patents – One Year
    Design Patents – Six Months**.

    Interesting to note that the right to priority is also set to six months per 35 USC 172, which however does not address 35 USC 120 (Continuations get the full one year period).

    **There is some debate as the 35 USC 120 reference only singles out the modified six month term 35 USC 102(d) and not, for example 35 USC 102(b).

  10. Noise above Law September 10, 2009 5:10 pm

    correction – 35 USC 172 only references 35 USC 102(d) and not 35 USC102(b)

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