Design Patent Term: Everything You Need to KnowPatent Law ResourcesDesign Patent
In 2015, the design patent term changed from 14 years to 15 years so the longer term applies to any applications filed on or after May 13, 2015. 6 min read
2. Why is the Design Patent Term Important?
4. What Could Happen When You Don't Understand the Design Patent Term?
5. Common mistakes
6. Frequently Asked Questions
7. Steps to File
What is a Design Patent Term?
The design patent term is 15 years from the date you file an application. In 2015, the design patent term changed from 14 years to 15 years. The longer term applies to any applications filed on or after May 13, 2015. Be aware, however, that some websites report that the change began effective December 18, 2013. The confusion based on the Federal Register's original announcement that the change would be effective on the later of December 19, 2013 or three months after the US deposited a paper at WIPO in relation to the Hague Convention. It wasn't until February 13, 2015 that the deposit was finally completed, which means that he change did not take place until three months after, making it May 13, 2015.
Design patent holders and applicants along with legal experts worked to present the case to extend the design patent term. Several years before it passed, Congress passed an act titled Patent Law Treaties Implementation Act. The result was the U.S. becoming a member of the Hague Agreement for the Registration of Industrial Designs. As the title suggests, this membership relates to design patents.
The international treaty of the Hague Agreement establishes specific rules for filing design patents. It also allows U.S. residents to file for international design patents.
Prior to the creation of the Hague Agreement for the Registration of International designs, the processes were very different. Countries had unique requirements and documentation. This made it difficult or even impossible to review design patents held around the globe. This agreement simplified and standardized those requirements.
Another step in the process of the U.S. becoming a member was providing ratification instruments to the World Intellectual Property Organization (WIPO). Following a three-month waiting period, the U.S. was accepted into the group.
The membership in Hague comes with several benefits for U.S. inventors and designers.
- Increased the term from 14 to 15 years
- Design application is standard and easy to use
- Applicants can file for up to 100 designs on a single application
Some other countries don't review patent applications as extensively. However, the United States Patent and Trademark Office (USTPO) reviewers will continue to review all applications carefully.
This change also played a role in other countries, such as China, South Korea, Canada, and Japan, who are possibly joining Hague.
Why is the Design Patent Term Important?
It's important to know the design patent term when applying for a design patent. After a patent expires, other companies and individuals can start replicating the unique ornamental design of a product, so the design patent term is the only period of time that a designer has to make money off of the design.
If you're looking to create a new design, you also need to review existing design patents. It's crucial to avoid infringing on a design patent. If you do, you put yourself and your company at risk of legal action. You can review the design patent term to see how much longer it will be in effect. This will help your company decide when to start producing a similar item.
The deadline of the design patent term expires after 15 years. The term starts on the filing date of the application. It can take several years to receive approval on a design patent, but the filing date is still when the term begins.
You also have a deadline to apply for a design patent. Similar to other types of patents, the deadline is 12 months. The timeline of 12 months occurs after you first publicly introduce the design on the market. If you show it at a trade show or publish information about it or an image of the design in a publication, this counts as public introduction.
What Could Happen When You Don't Understand the Design Patent Term?
Many inventors don't realize that a design patent has a term. After the 15-year period, the patent expires. Upon expiration, you cannot renew a patent. It simply becomes public domain.
It may take a few years to get design patent approval. But once you do, you can share your unique ornamental design as much as possible to capitalize on it.
During the term of your design patent, you should also focus on possible infringements. If another company or person tries to copy your idea, you can take legal action. However, if you wait too long, the design patent term might end. At the end of the term, you no longer have the option to sue an infringer.
One mistake that an inventor might make is waiting too long to file for a design patent. This could result in not being able to file for patent protection at all. The 12-month period is strict, although there are some options to pay fees for extensions. As soon as you have an idea, start looking into design patents that already exist. This could help you know whether your idea qualifies for a design patent.
Another common mistake is failing to file a suit for patent infringement during the design patent term. Taking legal action against another entity is not easy, but if the infringement is impacting your ability to sell the item, it's definitely worth it. You can qualify for damages, or funds paid by the infringing company, that cover your lost money and financial strain.
Often, people are not aware that they don't need to worry about maintaining the design patent pending throughout the 15 year term once their design patent is issued. Design patents are quite different from utility patents in terms of maintenance fees. To keep a utility patent current and out of the public domain, there are maintenance fees that increase at 3.5, 7.5 and 11.5 years.
The last common mistake is not having a clear understanding of the design patent term. At the end of the 15-year term, the patent expires and you no longer own the rights to the design.
Frequently Asked Questions
- What is the design patent term?
As of 2013, the new design patent term is 15 years. This starts on the date you file an application for a design patent.
- When did the design patent term change?
The design patent term changed from 14 to 15 years in December 2013. Any application submitted on or after May 13, 2015 qualifies for the new term of 15 years.
How long will it take to issue my design patent?
While there are options for expediting the process, it typically takes between one and three years from the date the patent is filed.
- What should I do during my design patent term?
The design patent term is the time period when your idea is protected against infringement. If anyone copies your idea and tries to sell it, you can take legal action against that person or business. The process of filing a lawsuit for patent infringement involves putting together a case and comparing the two items. In some cases, the jury will view a third item that is the closest to the patented design.
During your design patent term, you need to take advantage of the protection as much as possible. Work with manufacturers or businesses to get your product in front of as many people as possible. You can use this time period to get as much as possible out of your original design idea. After the term ends, your patent will no longer be in effect.
Steps to File
Filing for a design patent term involves submitting a design patent application. Use the application from the USTPO and follow the detailed instructions. This guide will help you see exactly what you need to include with your application.
Some designers opt to work with a patent attorney to submit the application on their behalf. This does cost more but save you time and stress.
If you need help understanding the term for a design patent, post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.