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Design Patents

Design Patent Application:

A design patent is a special type of patent established by 35 U.S.C.  171 which protects the aesthetic appearance of a product (how it looks) rather than its utility (how it is used/what it does). The protected design may be the external design or the internal configuration of the product or both.

Qualifying for a Design Patent:

Several considerations go into what types of design may be patented. The design may be for internal configuration of a product or for surface ornamentation.  However surface ornamental designs must be physically inseparable from the embodiment (invention). The surface ornamentation should not be able to stand alone.  However, the design must be conceptually separable from its embodiment.  That is, the design must be completely ornamental and not governed by functional or utilitarian considerations.  A design that is largely the result of utilitarian considerations is not patentable. The design must also be new and nonobvious. Design patent law is designed to protect truly innovative designs, not designs that have been seen before or that are logical extensions of pre-existing designs.

How long does a design patent last?

Design patents last for a term of 14 years.

What are the Requirements of a Design Patent?

For a design to be patentable it must be novel, original, non-obvious, ornamental and not dictated by functional considerations.

Examples of things covered by design patents:

Subject matter protectable by a design patent may include product packaging, automobile designs, television designs, computer graphics, furniture designs, tool designs, shoe designs, etc…

Applying for a design patent:

To file for a design patent, an inventor must file an application containing all the required documents with the Patent and Trademark Office.  This may be achieved in person, by mail, or online.

Drawing guidelines for a design patent application:

Drawings/photos must include a sufficient number of views and angles to constitute a complete disclosure of the claimed design. Any photos or illustrations must be in black and white unless special permission is given by the Patent and Trademark Office.

Design Patent Searches:
Design patent searches are not required to be conducted by the patent applicant because the Patent and Trademark Office conducts its own search as part of its examination process.  A patent search is a search of the relevant prior art to see if any claims have been previously disclosed or anticipated by the prior art.

Filing Requirements for Design Patents:

Design patents have several filing requirements necessary to begin patent prosecution. These requirements include (in the order they must appear in the application): the design application transmittal form, fee transmittal form, application data sheet (optional), specification, drawings/photographs, and a signed oath or declaration. The specification must contain the following elements in the stated order: a preamble stating the inventor’s name, the name of the design and the use of the invention in which the design appears; a cross-reference to other related applications unless such information was included in the optional application data sheet; a statement concerning whether research and development was federally sponsored; a description of the illustrations; the illustrations of the design; and a single claim.

Submitting more than one design in my design patent application:

In a design patent application, only a single claim may be included in the specification. Unlike a utility patent applicant which may claim multiple things in a single application, a design patent applicant is limited to one claim per application.

PTO’s design patent examination process:
While the requirements for a design patent may differ from the requirements of a utility patent, the actual process used by the Patent and Trademark Office for evaluating the patentability of applications is the same. For details on this process see Response 14.

Comparing Design Patents and Utility Patents:

Design patents protect the aesthetic aspects of an invention and last for 14-year terms. Utility patent protect the functional aspects of an invention and last for 20-year terms. Both design and utility patents must be novel, nonobvious and must be sufficiently disclosed in written form.  However, design patents have no utility requirement as demonstrated utility is a bar to a design patent. The subject matter of design patents and utility patents also differ. Utility patents can be granted for any process, machine, manufacture, composition of matter or improvement thereof. Design patents are granted for the surface ornamentation or internal configuration of an embodiment.


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