Legal Question in Intellectual Property in New York

1) A utility patent covers the actual function the invention performs whereas a design patent covers a new & useful appearance/form of an article of manufacture. Since building sets have been around for several years it is unlikely that a utility patent would be granted for your idea (however a more in-depth discussion with a patent attorney would be necessary to make a reliable determination).

2) Architecture can qualify as a design patent which would potentially be discovered during the application process. If you know of a villa that is similar to what you are claiming in your patent application you must disclose such and the examiner will determine if your invention is new and un-obvious in light of such a work.

Copyright poses just as large a problem. Architecture is protectable under copyright law even if it is not patentable, but is original under copyright standards. Unintentional copyright infringement is still considered infringement (Bright Tunes Music Corp. v. Harrisongs Music), but the damages you would pay would likely be lower than if the plaintiff can prove direct infringement.

Consulting an attorney about the specific design you are developing as well as your sources of inspiration is recommended. A patent, trademark, and copyright search by an attorney could cost up to $1,000, but would be evidence of your due diligence to avoid infringing others if anyone ever tries to sue you and could save the estimated $3,000-$10,000 most patent applications cost if the search proves that a patent grant is unlikely.

Only your own patent lawyer can evaluate your objectives and determine what if any patent protection is relevant. You may qualify for something here, but it depends.

Architecture, to the extent it is functional, is not covered by copyright law, but floor plans may be. As regards to design patent, this is for an article of manufacture the protects ornamental value only. An analysis would have to be done to determine whether this would be relevant as well.

My colleagues made some statements that need clarification. The fact that many similar sets have been around brings nothing to bear on whether you can protect your claims today. A patent protects the HOW not the WHAT. You also need to make sure that this is something that will be worth the investment. A proper patent search and opinion can easily cost more than what my colleague noted. It frankly depends on what's involved.

The only thing you can really do at this point is begin to interview lawyers and get a sense of their insights and opinions. If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.

Kind regards,

Frank

www.LanternLegal.com

866-871-8655

[email protected]

DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.