What is a Design Patent Application?

A design patent application is the legal form that inventors much complete and file in order to obtain a design patent. A design patent is a more desirable option that a copyright because a design patent is considered to have more power. With a copyright, you have to prove that someone saw your original work and stole it. However, with a design patent, you only have to show that your original work and the copied version are the same.

  • The cost of applying for and obtaining a design patent could be as much as $2,000.
  • Additionally, it can take over a year to successfully complete the filing process for a design patent.
  • Copyrights differ from design patents because they are instantaneous; once the work is created, that work is copyrighted
  • Registration is only needed if you want further protection of your work in case you believe that someone might copy it.
  • The registration period takes less than six months and the cost varies between $35 and $85.
  • Copyrights last the entire length of your life with an additional 70 years, but a design patent only lasts 15 years.
  • Keep in mind that there are several design patent regulations that could prevent you from successfully filing your application. One example of this is filing a design patent after your designed has already been published, sold, or even just offered for sale.
  • Lastly, not every invention, design, or other piece of art can fall under copyright protection or design patent law. Art work like drawings and other illustrations are considered “surface ornamentation” and the USPTO does not offer design patents for this kind of work. Functional designs are also not protected under copyright law. Drawing on or decorating the surface of something could automatically disqualify you from copyright or design patent protection.

A Quick Introduction to Design Patents: Three Basics You Should Know

  1. If your artwork is considered novel (meaning that the work is new and original), you are most likely eligible for design patent protection in the United States.
  2. If you seek to patent a large piece of work, the filing fee owed to the USPTO is $760.
  3. As stated above, a design patent lasts for 15 years. Once you receive the design patent, there are no additional fees for the remainder of the 15 year term.

What Kind of Invention or Design is Eligible for Design Patent Protection?

For the most part, physical articles of manufacture (physical objects) have been the primary pieces of work that have qualified for design patents in the United States.

However, as of late, graphic design and other similar pieces of work that can be found in the digital realm have been applied for design patents.

5 Steps for Design Patent Application

  1. File a design patent application.
  2. The application is in review.
  3. In the event that you receive an Office Action, you must respond to it.
  4. A Notice of Allowance and Issue Fee Due Date will be mailed to you by USPTO.
  5. Once you pay the Issue Fee, your work is officially patented.

The companies with the biggest design patent portfolios are the ones with products that are ubiquitous and easily recognizable around the world. Such companies include Sony, Nike, AT&T, Goodyear, and Michelin.

Some History on the Origins of Design Patents

Before the industrial revolution, anyone who needed an object such as a shoe, saddle, or utensil would need to go to a craftsman who would design the product. After requesting for something to be made, the buyer would have to wait for the product to be designed before they could buy it.

Only at the turn of the 20th century did it become important for designers to separate the appearance of the objects they created from the objects that their competitors created. Ultimately, the appearance of a product determined whether or not it would be purchased.

With the appearance of products become even more important, so too did the legal protection of these products.

In 1842, the first design patent laws were introduced in the United States and they applied mainly to items such as furniture and jewelry.

Within 100 years, design patent laws included things considered to be a nonobvious design or novel creation. Items like credit cards or pair of sneakers would fall under these categories.

Who is Examining Your Design Patent Application?

When your design is being reviewed for a design patent, it is being examined by highly academic professionals with degrees in interior design, architecture, fine arts, industrial design, clothing and textile design, sociology, and journalism.

Design Patents Vs. Other Types of Intellectual Property

At this time, there are no forms available online for anyone wishing to obtain a design patent for a product. It is up to you to craft an application and that application must include the following items:

  1. Design Patent Application Transmittal
  2. Fee Transmittal
  3. Oath or Declaration
  4. Application Data Sheet

To make the application process simpler for yourself, take a look at some design patents that have already been issued. Design Patent D436, 119 is one of the patents you should review before moving forward with your application.

When writing the specification for your design patent application, one option for crafting your design patent application is to include a preamble. In your preamble, you should include the name of the design, the name of the person who invented the design, and a concise description of the how the invention connected to the design will be used. Review the information that you include in your preamble very carefully because this information will be printed on the official patent.

Writing a preamble is not required for a design patent application, but if you decide not to do this, you must write at least one claim instead.

In the claim, attach all bibliographic information including the application data sheet (also referred to as ADS) and the name of the inventor. The application data sheet is extremely useful for organizing bibliographic information about your patent and the application.

Tips for Writing a Single Claim

  • Write in a formal tone.
  • What you include in your claim should very obviously be related to your invention’s official name.
  • Everything about the wording you use in the specification should be concise, yet descriptive.

Recommendations for Deciding on the Right Title for Your Inventions

When choosing the title for the invention that you wish to patent, it is recommended that you make the title as descriptive as possible. At the same time, it should clearly show that the title appropriately matches what the invention is and its purpose.

Understanding Specification

  • If you haven’t already included this information on the application data sheet, make sure to point out any cross-references when writing your specification.
  • If there has been any federally sponsored research related to the invention of your product, mention this in the specification as well.
  • Within the specification portion of your application, include both figure descriptions and special descriptions.
  • The figure descriptions give application examiners a better idea of what each view of the drawings represents.
  • In the special descriptions portion, if there is anything in your design (specifically an illustration) that does not belong in the design, make a statement in the application indicating that in order to ensure that is not patented along with the original design.
  • If you did not already include it in your preamble or you did not include a preamble in your patent application, describe the intended use of your design in specification.
  • When you write your claim, provide added details on what you plan to do with your patented design. Remember, only one design can be patented at a time.
  • When you describe the design you wish to patent, the description should be in line with the actual name of your design or invention.

Basic Rules for Photographs and Black and White Drawings

  • If you are attempting to patent a drawing, you will almost certainly be required to create it on white paper with black ink.
  • According to specific design patent application regulations, you can submit a photograph of your illustration only if the photograph is better than the illustration.
  • If you plan to submit a photograph of the ink drawing instead of the actual drawing, you need to apply for an exemption in writing when you submit your application.

Instructions for Submitting Photographs of Your Design

When you submit your black and white photograph and it is submitted on double white photographic paper, you have to include the drawing figure number on your photograph. You cannot submit both a photograph and a drawing in your application at the same time. If you wish to submit a color drawing or photograph to the USPTO office, you can do so only after filing a petition. Very clearly state in that petition why color is a necessity of the design patent application.

There needs to be an adequate number of views of the design when you are submitting your design patent application. For example, provide plenty of views of the design, getting the front and rear side, left and right sides, and top and bottom. Although it is important to get a sufficient number of views of your design, you do not need to have multiple copies of the same view. So long as you have views of the angles listed above, you should have the proper amount of views to include in the application.

Instructions for Submitting Your Illustration for Patent Protection

Using a Sectional View: If you want to use a sectional view in your design patent application, you can do so in order to enhance certain elements in your design. Although this is permissible, including a sectional view simply to showcase features that could be deemed functional is neither allowed nor required.

Using Surface Shading: To correctly show the contour and characters of the surface of your drawing, use surface shading in the design. Surface shading will also separate open areas from the solid areas of your drawing.

Using Broken Lines: Any broken lines used in the design are only for illustrative purposes and have no part in the actual invention that is being claimed.

In most cases, whenever broken lines are included in a design, they should not cross into the solid lines in the design. It is also important that they are not darker or thicker than the actual lines in the design.

The Oath or Declaration

When you include an oath or declaration with your application, it must be in compliance with the patent rule 37 CFR §1.63.

Three Fees to Expect When Submitting Your Design Patent Application

When you submit your design patent application, you are required to pay the following fees:

  1. The filing fee
  2. The search fee
  3. The examination fee

Anyone who works as an independent inventor or who runs a non-profit organization or small business is considered a small entity. For small entities, the aforementioned fees are cut in half.

Don’t Underestimate the Power of a Great Drawing

The drawing disclosure included in your design patent application should be considered one of the most important documents that you submit. Without the drawing disclosure, you are not able to accurately portray the design you are claiming. No matter what type of patent it is, drawings are subject to the same rules across the board. All requirements related to lines, marginal, and other aspects of the drawing must be met.

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