Design Patent: Everything You Need to Know

Key Takeaways

• A design patent protects the ornamental appearance of a functional item, including shape, surface decoration, or both.
• Design patents do not cover functional or structural features—that is the realm of utility patents.
• To qualify, a design must be novel, non-obvious, and not functional.
• The USPTO requires detailed drawings that clearly depict the claimed design, and the application typically includes only one claim.
• Design patents are valid for 15 years from the date of grant (if filed on or after May 13, 2015).
• Design patents can be enforced through civil litigation and provide remedies such as injunctions and damages.
• Design patent protection is different from copyright or trademark protection, but they can be combined for stronger IP defense.

A design patent protects the way a manufactured product looks but not the way it works or how it's structured. Businesses can protect their intellectual property (IP) rights over an original design by applying for patent protection. This should be done before entering the market to prevent a competitor from copying and profiting from your design.

When you are granted a design patent, you have the right to exclude others from using this design in personal and commercial applications. A design patent can patent everything from jewelry to packaging.

Design Patent Eligibility

To be eligible for patent protection, the design must also be useful. A method of creating art, such as a painting or photographic technique, cannot be copyrighted. The design must also be repeatable to qualify for patent protection.

Instead, the U.S. Patent and Trademark Office (USPTO) issues design patents based on a working object's ornamentation. The design of the object must be separable from its use and may not affect how the invention works.

First, you need to consider whether the design is eligible for patent protection. One or both of the following criteria must apply:

• The surface of the item has unique ornamentation.
• The shape or structure of the object has a unique design, such as the 1998 Apple iMac.

The design must also be:

• Completely different from prior art
• Not obviously derived from other designs
• Visible when the product is engaged in its intended use

Digital design patents cover icons, fonts, and screen layouts for apps and software programs. However, these patents only protect designs when they are displayed on a screen, not in other forms.

Legal Definition and Scope of a Design Patent

A design patent grants legal protection to the ornamental design of a functional item. It does not protect the product's structure or utility—that is the role of a utility patent. Under U.S. law (35 U.S.C. § 171), a design patent may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.

Key elements that define the scope of a design patent include:

• Visual appearance of the object
• Non-functional aspects only
• Single embodiment of the design shown in detailed drawings

The design must be perceived by an “ordinary observer” as distinct from existing designs, and the protection it grants is narrow, covering only what is shown in the drawings.

Applying for a Design and Utility Patent

Getting a design patent doesn't prevent you from getting a utility patent, which protects the way an object works or how it is used. This use must be non-obvious and novel compared to earlier inventions in the industry (prior art). Like the design patent, the utility patent is a right of exclusion that prevents others from using, making, selling, or importing protected functions of the product (called claims). Utility patents provide stronger protection than design patents but require a longer, more costly application process.

You can also apply for copyright protection in addition to patent protection. This type of protection covers works of art including but not limited to sculptures, novels, paintings, and musical compositions.

How Design Patents Differ from Utility Patents

While both design and utility patents are issued by the USPTO, they protect different aspects:

For products with both a novel function and appearance, applying for both types of patents may offer the most comprehensive protection.

Why Are Design Patents Important?

Protecting your intellectual property rights provides both financial and brand security for your business. It prevents others from profiting from your original designs, increasing your potential market share.

Because your design is part of your brand, use by competing companies can dilute your market impact. Depending on the audience for your product, you could lose thousands or even millions if another company steals your design.

Real-World Examples of Design Patent Use

Design patents are widely used across industries to protect the unique look of products. Some notable examples include:

• Apple's iPhone: Apple has held design patents covering the shape, bezel, and graphical user interface of its devices.
• Coca-Cola’s bottle: Its iconic contour bottle was protected by a design patent in the early 20th century.
• Automotive parts: Car manufacturers often patent specific visual designs of bumpers, headlights, and fenders.

These examples demonstrate how businesses use design patents to protect brand identity and product differentiation in competitive markets.

Patent Infringement

Apple has often successfully defended its patents in court, most recently awarded more than $900 million when the federal court found that Samsung copied its design for the iPhone. Courts use the ordinary observer test, developed by the Supreme Court in 1872, to determine whether a design infringes on another design.

The jury must determine whether infringement exists by looking at the product in question compared to the design patent. If market confusion could potentially exist, infringement is likely. Expert testimony is not considered since these individuals can distinguish very specific details that may not be evident to the consumer.

Remedies for Design Patent Infringement

If your design patent is infringed, U.S. law provides several remedies through civil court:

• Injunctive relief: Prevents the infringer from continuing to manufacture, sell, or use the design.
• Compensatory damages: Includes actual damages or the infringer's total profits from sales of the infringing product.
• Treble damages: In some cases of willful infringement, the court may award up to three times the damages.

The test for infringement is the ordinary observer test, where courts determine if an ordinary person would find the accused design substantially similar to the patented one, leading to confusion.

When Does a Design Patent Expire?

Design patents last for 15 years if filed on or after May 13, 2015, or 14 years if filed before May 13, 2015, with the date starting from when you receive the design patent.

If your design patent expires, you can no longer protect your product's design. You can always ask to get an expired patent reinstated as long as no one else has claimed your design. However, a utility patent has a 20-year period if filed on or after June 8, 1995, attached to it with increasing maintenance fees at 3.5, 7.5, and 11.5 years after the issue date to keep the patent out of public domain.

Common Mistakes With Design Patents

Companies sometimes make these mistakes when they apply for a design patent:

• Not doing patent research: You'll waste money trying to apply for a design patent when someone already owns the intellectual property rights to the design.
• Not protecting how the product works: If your product is unique in the way it works and in its design, you need a utility patent. You can file a provisional utility patent, which also lets you use the words "patent pending" when describing your product until you file for a full utility patent.
• Not including specifics: Unlike utility patents, design patents depend on drawings. If your drawings don't have enough detail in them, the USPTO might turn down your application.
• Not speaking with a lawyer: A lawyer can help you file a design patent. Look for a lawyer who has experience with intellectual property.

Steps to File a Design Patent

Applying for a design patent doesn't take much time as long as you have searched for an existing patent and found a lawyer to help you draft your application. Patent Drawings The USPTO asks for drawings from all sides of the object:

• Left
• Right
• Top
• Bottom
• Front
• Back

The only exception is when two or more sides look the same.

This part of the application is the drawing disclosure. The drawings should include surface shading which helps show the object's contours. Also, parts of the drawing that don't apply to the patent should have broken, not continuous, lines. Broken lines are most commonly used to show the environment around the design and to define the bounds of the design.

Since these drawings are the most important part of the design patent application, you may want to consider paying a professional around $600 for high-quality drawings.

Patent Claim and Details

Before you fill out your design patent application, title your product. Make the title as specific and descriptive as you can. Most titles have only one or two words that label the design based on consumer words, such as "chair," "wind chime," or "fish tank."

Utility patents need more text than design patents. You need to make a simple claim and state what you have designed. You can also include short statements that help describe sections of your application.Here's an example:

• You might describe each drawing view in a few words or use figure descriptions.
• Figure descriptions go with your drawings, and they describe what viewers see in the drawings.
• You can use words like "Figure 1 is a bottom view of my suspended lampshade design."

You can include a preamble in a design patent. A preamble is a simple statement that says that you're the inventor of the submitted product. Also, write a sentence or phrase that briefly describes the product and how you want it to be used. You'll also need a single claim, another simple statement: "The ornamental design for sandals, as shown and described."

You also need to note any cross-references to patent applications related to your product, unless you already have them in your application. You must also note whether you relied on any federal research or development to create your invention.

Importance of Drawings in a Design Patent

In a design patent, drawings are the most critical part of the application because they define the scope of the patent. According to the USPTO, the claim in a design patent refers specifically to the design illustrated in the drawings.

Important drawing guidelines:

• Show all relevant views (top, bottom, sides, front, back)
• Use solid lines for claimed features and broken lines for unclaimed elements
• Use shading to show surface contour and depth

Given how vital these illustrations are, many applicants hire a professional patent draftsman to ensure accuracy and compliance with USPTO standards.

Patent Application

You can apply for a patent electronically at the USPTO website. Applying online is the easiest way to get your patent application into the USPTO's system.

If the application is passed through, the USPTO will send a notice of allowance to the applicant's patent attorney. Similar to utility patents, an issue fee is also required to issue a design patent but is typically a third of the cost.

What a Design Patent Covers

A design patent protects the visual appearance of a product, such as its shape, configuration, surface ornamentation, or a combination of these. It does not cover functional or structural aspects—that falls under a utility patent. Because protection is limited to what is shown in the submitted drawings, even small changes to a design may require a new design patent application to ensure continued protection.

Timeline for Receiving a Design Patent

The U.S. Patent and Trademark Office (USPTO) generally processes design patent applications more quickly than utility patents. Most design patents are granted within 12 months of filing, and some may be approved in as little as 6 to 9 months. By contrast, utility patent approvals often take several years.

Similar Design Patents and Overlap

Multiple design patents may exist for designs that look similar but are not identical. The key test for infringement is whether an “ordinary observer” would consider one design substantially similar to another. Importantly, similar designs can coexist if they are applied to different, non-competing products or if the designs are sufficiently distinct.

Legal Action for Design Patent Infringement

If your design patent is infringed, you have the right to pursue legal remedies. This may include:

• Filing a lawsuit to seek damages or injunctions
• Sending a demand letter requesting that the infringing party stop use and potentially pay a license fee

Courts determine infringement based on whether an ordinary observer would find the accused design deceptively similar to the patented design.

Patent Reissue Explained

A patent reissue occurs when you need to correct or modify a granted design patent. This typically involves submitting updated drawings or clarifying language. Reissues can help fix errors but cannot be used to broaden the scope of the original design.

Costs Associated With Design Patent Applications

As of January 2017, the USPTO fees for a design patent application are:

• $180 for standard applicants
• $90 for small entities
• $45 for micro entities

Additional costs may apply for professional drawings or legal assistance, but these fees are often minimal compared to the value of IP protection.

Key Differences Between Design and Utility Patents

Design and utility patents serve distinct purposes and involve different application processes:

• Claims: Design patents include a single visual claim, while utility patents may have multiple claims.
• Filing strategy: It is common to file multiple design patents for minor visual changes. Utility patents require more substantial differences.
• Double patenting risk: Filing more than one patent for the same invention can trigger double patenting issues.
• Foreign priority: Design patents have a 6-month priority period; utility patents have 12 months under the Paris Convention.
• Provisional applications: Only utility patents can claim priority to a provisional application.
• Examination continuation: RCEs apply only to utility/plant patents; CPAs apply to design patents.
• Publication: Utility patent applications filed after November 29, 2000, must be published. Design patent applications are not published unless granted.

Design Patent and Trademark Protection on the Same Product

A single product can be protected by both a design patent and a trademark. The two serve different legal purposes:

• Design patent: Protects the ornamental features for a limited time (typically 15 years).
• Trademark: Protects distinctive signs or packaging that identify the source of goods and can last indefinitely with continued use.

Trademark infringement occurs if a product causes consumer confusion about the source or origin of the goods, while design patent infringement is judged based on the “ordinary observer” test for visual similarity.

Frequently Asked Questions

What is the main benefit of a design patent?It gives the patent holder exclusive rights to the ornamental appearance of a product, helping prevent copycats and preserving brand identity.

Can I protect a product with both a design and utility patent?Yes, if your product has both novel visual and functional features, you can file both types for stronger protection.

What happens if someone slightly changes a design?Even minor modifications can avoid infringement if the new design does not appear "substantially similar" to the patented design to an ordinary observer.

Do I need an attorney to file a design patent?It's not required, but working with an intellectual property attorney can help ensure your application is thorough, accurate, and likely to be approved.

Is international design protection available?Yes. Through the Hague Agreement, applicants can file a single international design application to protect their design in multiple participating countries.

Design patents help you protect your intellectual property by helping you to protect the way a product you have created appears. Now that you know about design patents, post your legal need so that an experienced lawyer can help you with the design patent process.