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What is a Design Patent?

The United States Patent and Trademark Office (USPTO) can issue patents on novel designs.  These patents are called design patents.

 

These design patents are very different from the utility patents.  If you read my other article on utility patents, you might recall that utility patents are the ones the public thinks of when they hear or say “patents.”  However, a design patent does not protect a useful invention – instead it protects a novel design.  So what is a “design?”  Here design is taken to mean the aesthetic appearance rather than the functional characteristics.  In other words, the design patent protects the non-functional look of something.  A great example of this is the chair that looks like a giant baseball catcher’s mitt.  The inventor didn’t re-invent the chair – he invented the design of a chair that looks like a catcher’s mitt.  The design patent won’t stop people from making chairs, but it can be used to stop them from making chairs that look like baseball catcher’s mitts. 

 

Of course there are some similarities.  For example, the design application is still subject to the requirements of novelty and non-obviousness.  In an nutshell, this means that the applicant’s design must be new and not readily follow from another design or other prior art.  See my other articles for more about these requirements.

 

Another important difference is the application format.  For comparison recall that a utility patent will typically have many pages of written description.  That description will cover the prior art, the need of the invention, the benefits of the new invention, and various embodiments of the new invention.  But the design patent is much simpler in terms of written requirements.  This makes sense because the design patent protects the way something appears.  This difference makes the drawings and figures much more important in the design patent application than in any other type of patent.

 

A good application must include sufficient drawings to accurately describe and show the new design.  This might mean five views of the design from different perspective angles, such as top, bottom, left side, right side, and front.  But in some cases a single drawing may be sufficient.  Be warned there are more than a few highly particular rules to the style, form, format, and content of the drawings you submit as part of an application.  If you’re attempting the drawings yourself, or if you’re simply interested in reading these rules see the MPEP. 

 

One particular drawback to the lack of written description is that it can make searching for related patents and prior art somewhat difficult.  Thankfully there are codes that are used by the USPTO in designating and classifying the design patents.  If you do take the time to learn the relevant codes, this will help with searching the USPTO databases.  Unfortunately, those won’t help with searching other sources. 

 

If you think a design patent is something you want or need, you should know that the “term” is only fourteen years.  This means the patent will only protect your design for fourteen years. 

 

At the time of writing this article, you can expect to pay about $1320 in USPTO fees per application subject to change at the discretion of the USPTO, if paying full price.  These fees can basically be broken down into $760 to apply, and $560 if the patent is cleared to be granted (“issue fee”).  There are many other itemized fees you might have to pay for various things – but these other fees can typically be avoided by careful planning and skilled prosecution.  However, the fees are reduced by half to those qualifying for “small entity status.”  Better still, for those applicants qualifying for “micro entity status” the fee is reduced to only 25% of the full price.   This means you’ll only pay $190 to apply and then $140 if the patent is approved (“issue fee”).  See my other article on small and micro entity status.

 

 Any attorney fees will be in addition to those USPTO fees noted above.  If you decide to hire an attorney to help you apply for a design patent, make sure you know what services you’re getting.  Are the drawings included or an extra cost?  Will the attorney be filing for you or simply preparing the application?  Will responses to USPTO communications be included or cost extra?  Is there a cost for communications to you as the client?  These are just some of the very important questions you should ask the attorney before you commit to services.

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