Design patents protect the way something looks, not the structural components informing the device. Design patents are narrower in scope, and protect patterns, the shape of a particular implement, and other ornamental concerns. A design patent might be right for you if you have devised something that already exists, but has a new ornamental value you want to protect. Design patents are enforceable for 14 years, from the date of issuance.
Download our overview of the patenting process here.
More about design patents
Filing a Design Patent Application
There is only one type of design patent application. While a design patent can claim priority to a current nonprovisional application for utility patent, if the drawings in the nonprovisional sufficiently disclose the design, design patents cannot claim priority to provisional applications for utility patent.
The scope of the design must be set forth in the drawings in the design patent application. Patent drawings are controlled by statute and regulation. Design patent examiners are notoriously picky about meeting the letter of the law. Thus it is vital that a competent patent draftsperson draft the drawings in any design patent application. Making amendments to the drawings after filing the design patent application can be difficult.
Why file a Design Patent?
Design patents remain in force for 14 years from the date of grant.
Design patents issue faster than utility patents and can be very useful in protecting a design associated with a brand, for example. Design patents can help protect an product’s trade dress while the product acquires distinctiveness in the marketplace – a necessary precursor to registering a trade dress. Design patents can protect stylistic variations of products that are already established in the marketplace (for example sunglasses, picture frames, lamps, clothing, patterns, shapes, furnishings, handles, faucets, bottles, etc.)
The test for infringement of a design patent is easier to discern. The test is the “ordinary observer” test: whether or not an ordinary observer would mistake the objects, one for the other.
This test is often easier to contemplate than utility infringement, which is a complex legal question, and design patents can be effective in preventing counterfeit products sold via online retailers. Large online retailers, like Amazon or Alibaba, typically will enforce design patents on a product side-by-side comparison without a court order. That can be expedient in preventing online sales of counterfeit goods, where a brand itself is at issue.
International Design Patent Filing
The Hague Agreement
International design patents are controlled through the Hague Agreement. For more information on international design patents, please click here.