Answers to Frequently Asked Questions About Design Patents

DEREK FAHEY, ESQ.

A design patent protects the ornamental appearance of an article, including features such as shape, configuration, contrasting materials, and surface ornamentation. For businesses whose competitive advantage depends on a recognizable product appearance, design-patent protection can be commercially significant.

How Do I Know Whether to Protect a Design?

If competitors are likely to copy a design or create a substantially similar appearance, a design-patent application should be considered. A granted design patent provides a limited period of exclusivity over the claimed ornamental design and can help prevent competitors from using substantially similar designs.

When Should an Application Be Filed?

United States law may provide a limited grace period following certain public disclosures, but many foreign jurisdictions do not. Because patent rights generally follow a first-to-file system, maintaining confidentiality and filing before disclosure is often the safer strategy, particularly when international protection may be important.

How Does Design-Patent Protection Differ From Copyright?

Copyright and design patents may overlap, but they impose different infringement standards. Copyright claims often require proof of copying. A design-patent owner instead focuses on whether the accused design is substantially the same in the eyes of an ordinary observer familiar with the prior art.

What Do Solid and Broken Lines Mean?

Solid lines generally identify the portions of the design being claimed. Broken lines typically show unclaimed environment or features that do not form part of the protected design. Careful drawing strategy can materially affect the scope of the resulting patent.

Can a Design Patent Claim Priority to a Provisional Application?

A design-patent application cannot claim the benefit of a provisional patent application in the same manner as a utility application. Applicants should therefore determine the appropriate filing strategy before relying on a provisional application.

Can Graphical User Interfaces Be Protected?

Graphical user interfaces, screen displays, and icons may qualify as surface ornamentation. To satisfy the applicable requirements, the claimed interface is generally shown as embodied in a display screen, monitor, smartphone, or other article of manufacture.