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Design Patents

A design patent is a type of patent that protects any new, original and ornamental design for an article of manufacture. In other words, a design patent protects the visual or aesthetic characteristics of an article of manufacture. While a design patent does not protect the functional aspects of an invention, the functional features of an invention can be protected by a utility patent application. Additionally, an article of manufacture may be entitled to both design and utility patent protection if the article of manufacture contains both functional and ornamental characteristics. A design patent allows the owner of the design patent to exclude others from making, using, copying, importing a design substantially similar to the design claimed in the design patent.

One of the main differences between a design patent and utility patent is that the term of a utility patent is 20 years while the term of a design patent is 14 years. Another difference between a design patent and a utility patent is that design patent protection may be less expensive to acquire that utility patent protection. That is because a design patent application requires less time to draft than a utility patent application and the United States Patent and Trademark Office (“USPTO”) fees associated with design patents are less than the fees associated with utility patents.

In the United States, to acquire a design patent for a design, an applicant must prepare and file a design patent application with the USPTO. The preparation of a design patent application requires the knowledge of patent law and rules and USPTO practice and procedures. While hiring a patent attorney registered to practice before the USPTO is not required in order to prosecute a design patent application, many businesses and individual inventors find it prudent to hire a registered patent attorney, such as one of the attorneys at Plus IP, to prosecute a design patent application. That is because, according to the USPTO “while persons not skilled in this work may obtain a patent in many cases, there is no assurance that the patent obtained would adequately protect the particular design.”

The drawing disclosure is the primary focus of a design patent. The drawings must illustrate the design being claimed in the design patent application. The solid lines in a design patent’s drawings depict the claimed features of the object. Broken lines can be used to depict the unclaimed environment surrounding the claimed design. In other words, the broken lines illustrate what the rest of object could look like. The less the amount of solid lines in the drawings, the stronger or broader the patent. However, an applicant should be cautious not to claim the design too broadly as this may cause issues when prosecuting the design patent application and ultimately when enforcing an issued design patent against an infringer. Unlike a utility patent application, where the “claim” describes the invention in a written explanation, the claim in a design patent application protects the overall visual appearance of the design, described in the drawings. It is essential that the applicant present a set of drawings or photographs which conform to the rules and standards set forth by the USPTO.

Many businesses use design patents as an integral part of their intellectual property portfolio. Design patents are important to businesses to protect designs that their customers find unique. For example, in a recent design patent infringement case, Apple was awarded a jury verdict of $1.049 billion dollars in the U.S. case of Apple v. Samsung. Of that verdict approximately $746 million dollars was based upon design patents. Individuals and business should carefully determine what aspects of a design should be covered by a design patent. The attorneys at Plus IP are available to discuss your design patent related questions.

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