Understanding Design Patents
- Application process differences from utility applications
- Obtaining a design and utility patent on a new invention
- When is a design patent worth it?
A design patent is a protective right to the inventor of visual, aesthetic characteristics of an article of manufacture. The aesthetic characteristics are referred to in patent law as “ornamental” and are completely separate from the functionality of the item. Since the ornamental design of an item is separate from its function, it is theoretically possible to obtain a new design patent for a design on a well-known item. However, since the design is inseparable from the article of manufacture, it is practically unlikely to invent a new design for a known item without running into prior art issues.
A design patent can be granted to items that are ornamental and applied to other articles of manufacture. This could be a sticker, graphic heat press clothing design, or automobile hood ornament. The design patent would not include any rights to the underlying manufacture and must disclose this in the written specification and the drawing (by drawing the unclaimed manufacture with broken lines).
Application Process Differences from utility applications
A design patent protects the way something looks. A utility patent protects the way something functions. Apart from this patent law definition, there are several practical differences in obtaining a design patent as opposed to a utility patent.
I. Provisional Patents
Provisional patent applications are not available for design patents. This means that if you have a new invention that you want to cover with both a utility and design application, you can file a provisional application and disclose the design in the drawings but not claim the design in the application. This drawing disclosure will not provide you a prior art date based on filing, but will provide you a publication date which acts as proof to protect your rights if someone files a patent on your design. You wouldn’t reference the drawings in a design application but you would provide the drawings and provisional application in an interference proceeding.
II. Term Length
IV. Written Specification
V. Prior Art
VI. International Applications
Obtaining a Design and Utility patent on a new invention
When is a design patent worth it?
To determine whether a design patent is worth it, you need to evaluate the advantages and disadvantages.
- Design applications cost less, especially in attorney’s fees;
- Design applications are examined and concluded substantially faster (roughly half the prosecution time);
- Design applications are granted at a much higher rate.
- Design patents are narrow in scope, only covering the design of a product within a particular industry;
- Design patents are difficult to enforce, with the vast majority of enforcement attempts failing.
As you can see, the analysis can be summarized as: design patents are cheap and easy to get but aren’t worth much by themselves. I would, however, consider design patents well worth it if you consider the look of your product or invention important, or if you are trying to build a brand. A specific design, brand, or uniform look is often associated with quality and trustworthy items when used on a large scale. Production on a larger scale is also when cheap rip-offs are bound to pop up. Therefore, the low cost of a design patent is well worth it if you intent to grow your brand or sell your product on a somewhat large scale.
Design patents are separate from utility patents and vary in many important ways. They have different filing requirements, rules for prior art, international application procedures, costs, and processing times. They also have different enforceability and issue statistics, wherein design patents are easier and cheaper to obtain but more difficult to enforce. You should consult a patent attorney to determine if a design patent is a good option for you.
I went to law school at Capital University in downtown Columbus. There, I became the first person in school history to graduate the program (a 3-year program) in just 2 years while on the Dean’s list. I started my firm straight out of law school after marrying my beautiful wife and passing the bar exam. Now, I represent businesses in litigation, draft transactional documents, provide legal advise to business owners, and represent them in transactional negotiations.
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