The International Design Patent Application in the Era of COVID-19:
~ Patenting Designs Associated with Healthcare Innovations~
Since the beginning of the Coronavirus (“COVID-19”) pandemic, there has been a continued rise of online product sales through online marketplaces like Amazon® and eBay®. Specifically, there has been a continued rise in online Personal Protection Equipment (“PPE”) sales. These online marketplaces, like many others, offer many PPE products, forcing a premium on distinctive and effective PPE product designs. This encourages manufacturers to develop unique PPE design elements for their PPE product designs wherever possible.
A patent, whether utility or design, provides a monopoly on an innovation for a certain period of time. A utility patent and a design patent each provide a different type of protection. A utility patent protects the way something works or the functional features of an idea or concept. On the other hand, a design patent protects the exterior appearance (ornamental or aesthetic aspect) of an article of manufacture. Internationally, design patents are referred to as “Industrial Designs.” Industrial Designs or design patents protect a wide variety of products across many industries, which could include anything from electronic devices to a filtering facepiece respirator (FFR) or other COVID-19 or other virus spreading products.
Since May 13, 2015, persons who wished to protect a design style right in the United States, as well as outside the United States, should use the PCT-like equivalent, known as the Hague System for the International Registration of Industrial Designs (“Hague System”). The Hague System provides a mechanism for filing a single International Design application (“international application”) through the World Intellectual Property Organization (“WIPO”), which results in a single international Industrial Design registration (“registered owner”) that protects the registered design in each of the 73 contracting parties covering 90 countries. If an international application becomes registered, then the registered owner is afforded the right to prevent third parties that are undertaking acts for commercial purpose from (1) making the protected design, (2) selling the protected design, or (3) importing articles bearing or embodying a design which is a copy, or substantially a copy of the protected design.
In many cases, the Hague System allows design owners to acquire design patent protection in multiple markets swiftly. In fact, many savvy US based design owners have begun using the Hague System to protect their design patent rights internationally. Notably, in 2019 the Hague System saw a 10.4% growth (21,807 Industrial Designs).  U.S. Design Patents resulting from Hague System applications filed on or after May 13, 2015, will have a 15-year term from issuance.
Pursuing design patent rights is an attractive option for inventors or companies that seeking to have some patent protection on their products. Below are drawings from four issued design patents associated with PPE and other healthcare technologies:
“Face Mask” “Medical Glove”
Medline Industries, Inc., Exsomed Corporation,
United States Design Patent US D874,735 S United States Design Patent US D873,500 S
“Gown with Pockets” “Combination Hand Sanitizer And Advertising Display”
Medline Industries, Inc. Terraboost Media, LLC
United States Design Patent US D811,692 S United States Design Patent US D789,704 S
Given the lower cost and higher odds of allowance associated with design patent applications, design patent protection may be a good option for smaller companies or inventors. Design patents afford smaller companies and inventors the marketing benefits of a “patented” product, which may ward off competitors, and attach consumers and investors. That said, speaking with an experienced patent or intellectual property attorney will be helpful to understand how best to protect an idea, concept or innovation given a business’s or inventor’s goals and budget. Having the right patent attorneys on your side to guide you through the application and registration process can make all the difference. Derek Fahey and William Furlow co-authored this article. You can learn more about Derek Fahey by clicking HERE.