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Design Patents

What is a Design Patent?

A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. A design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. Any person who has invented any new, original and ornamental design for an article of manufacture can apply for a patent. Within the context of a design patent application, it is essential that great care be taken with the drawings.

Design patents are relatively inexpensive when compared to utility patents. However, design patents protect the ornamental features of the item, not the function. A design for an article of manufacture that is dictated primarily by its function cannot be the subject of a design patent. Because of this, many inventors choose to apply for both a design patent and a utility patent. In this way, they protect the ornamental features (design patent) and the functional features (utility patent) of their product or design.

Another advantage of filing a design patent application is that it may be applied for and typically obtained quickly. The process of applying for a design patent may be made even speedier through the use of the “Rocket Docket.” The “Rocket Docket” allows an applicant of a design patent to move their application ahead of other applications. The process of obtaining expedited examination of a design patent may be accomplished by:

  • Submission of a request accompanied by the USPTO processing fee.
  • Drawings (must be in compliance with strict patent guidelines).
  • Conducting a pre-examination search.
  • Submitting an Information Disclosure Statement (IDS).

Even design patents that are filed without requesting expedited examination typically issue much quicker than utility patents. As such, an inventor may again decide to apply for both a design and utility patent, because the design patent may issue in a year, whereas a typical utility patent may take between one and three years.

Design Patent Infringement Claims

The standard for infringement of a design patent is based upon whether an ordinary observer, giving such attention as a purchaser usually gives finds the alleged design, to be substantially similar to the patented design.

It is advisable for applicants to have an array of different designs which perform the same function. This provides strong evidence that the design does not perform a function and that the design is not dictated by function. For primarily non-functional “ornamental” designs, beware of claiming functional features. In this manner, M&K can help you to protect your design and provide evidence that your design is primarily nonfunctional.

If you are in need of a design patent infringement attorney, email us at info@nullmeredithkeyhani.com or call us at the office nearest you.