How to Patent a Design: Everything You Need to KnowPatent Law ResourcesHow to Patent an Idea
Patenting a design gives you legal claim to your original design, the ability to use and sell it, and the right to profit from the unique look of an object.11 min read
Updated July 14, 2020:
Knowing how to patent a design is important because a patent gives you legal claim to your original design, the ability to use and sell it, and the right to profit from the unique look of an object.
What Is a Design Patent?
A design patent gives you legal claim to your original design, the ability to use and sell it, and the right to profit from the unique look of an object. If you want to patent a design, you can file a Design Patent Application with the United States Patent and Trademark Office (USPTO).
Design patents only protect the look of an object. They aren't the same as utility patents, which cover how objects work and how they're used. A design has to meet some basic requirements to qualify for a patent:
- It doesn't affect the function of an object.
- It is integral to an object and can't be removed.
How to Patent a Design
- Decide whether to hire a design patent attorney. If you don't have time to thoroughly research design patents or prepare your application, hire an attorney. Be sure to sign a power of attorney document.
- Complete a patent search. Do a patent search to determine if a similar design already exists. Include a discussion of your research in your application.
- File a design patent application with the USPTO. If you're looking for a premade application form for a design patent, you won't find any. But you can still make your own application. It is a good idea to look at a few issued patent designs before you file. This will help you get a good idea of what yours should look like.
- Work closely with your patent examiner. When the USPTO receives your application, they will send you a notice that includes a filing date. If your application is allowed, a patent examiner will describe how to complete the process and receive your patent. When you contact a patent examiner, be sure to include your application number, group art unit number, filing date, examiner name, and invention title.
- Amend or appeal your application if necessary. You have a small window to reply to a rejected application. If your application isn't approved, modify the contents or argue its merits. If you receive a second, or final, rejection, you can appeal the decision to the Board of Patent Appeals and Inferences.
To file a patent application, you'll need the following items:
- Abstract or "Preamble." This is a short introduction to the design.
- Title. Choose a straightforward title for your design.
- Description. Describe the design and its features in detail. In addition, include background information and any explanations related to the drawing. Provide cross-references and research to support your application.
- Claim. Design patent applications can include one claim only.
- Figures. You'll need to submit at least seven illustrations of your design. Include a 3-D view as well as views of the front, back, right and left sides, top, and bottom. Use surface shading to show contours. Broken lines should represent non-claimed design elements. You can include drawings or photographs but not both. If you use color illustrations, a relevant petition must be included.
- Figure Descriptions. Label each illustration and include a description.
- Oath or Declaration. This confirms your identity.
- Application Data Sheet. This includes bibliographical information about you.
- Design Patent Application Transmittal.
- Fee Transmittal.
Why Are Design Patents Important?
Design patents give you the exclusive right to profit from your design. They also enable you to legally prosecute an individual or business that attempts to profit from your design without your consent.
Reasons to Consider Patenting a Design
If the look of your product is unique, filing a design patent might be in your best interest. Here's why:
- Design patents are relatively easy to get.
- They are less expensive and easier to receive than utility patents.
- They are becoming easier to enforce. In recent years, design patents have increased in their importance. For example, in Egyptian Goddess, Inc. v. Swisa, Inc., the United States Court of Appeals for the Federal Circuit adopted an "ordinary observer test." To enforce a design patent, a jury simply has to compare a design patent with an infringing object.
- They offer complete intellectual property coverage. Many inventors apply for both design and utility patents. If the function and look of your invention are unique, applying for both gives you complete coverage. This is especially true for technology. For instance, a number of patents protect the function and appearance of Apple's iPhone.
Reasons to Consider Not Patenting a Design
A design patent isn't always the right way to protect your intellectual property. Before applying, it is important to understand what makes a design unpatentable:
- The design is already in use.
- The design has already been patented.
- The applicant didn't invent the design.
- The look isn't unique. Does your invention do something unique but the design isn't anything new? You should consider filing a utility patent application instead.
- You need to protect a unique artwork or a logo. Patents cover object design. They don't include artwork, symbols, or logos. File for copyright or trademark coverage to protect these items.
- You need to protect an industrial design. The United States doesn't offer separate protection for industrial designs but does participate in the Hague System. Therefore, if you need to protect an industrial design in Europe, this could be a smart solution for you.
There is no deadline for filing a design patent application. However, you should file it as soon as possible to protect your rights. The USPTO can take several months or even years to approve a patent application.
How Can I Protect My Design Ideas?
If you are developing unique designs that you plan to sell, ask any potential partners to sign a non-disclosure or confidentiality agreement. Provisional patents only apply to functions, not to design ideas. Therefore, you can't apply for a patent while perfecting your design.
If you are working for a company or licensing your design, you will need to sign an assignment form. This will give the ownership of the design patent to the company you are working with.
Can I File a Design Patent Application Myself?
Yes, you can file a design patent application as an individual or as a business. Doing so might help you save money, since you won't have to pay legal fees. Be aware that if you file an application yourself, you might have to spend many hours researching and completing paperwork.
Tips for Writing Your Design Patent Application
When writing your design patent application, you will need to be able to prove that your design will qualify under patent protection. It is important to remember that the design patent does not protect the actual invention itself, but the way that the invention looks. This can include such things as shapes, patterns, and ornamentation. If you are unsure whether your design could be subject to patent protection, you can look up the design patent guide on the USPTO website.
You will also need to complete the application data sheet, which will give the basic description and information about both the design and the invention it was created for. You can download a copy of the application data sheet from the USPTO website. Aside from the application data sheet, the application for a design patent will not be a specific form. Instead, you will need to follow the formatting guidelines that the USPTO has laid out.
When Should I Hire a Patent Attorney?
If you have a more complex design and need a good patent, it is better to hire an attorney. An experienced patent attorney can help you build a better case for your design. This may include showing how different design parts relate and why each is unique. This adds value to your patent. It will also give you more control over your design.
Do I Have to Draw My Design?
No, technically you don't have to draw your design. That said, you probably won't get a patent if you don't include a drawing. Design patent applications rely on drawings to show what the design will look like. The drawings matter more than any other part of your application.
Depending on your skill level, drawing your own design may not be good enough. You should do whatever you can to make sure it's a high-quality drawing to increase your chances of getting the patent. Hiring a professional to do the patent drawing for you is often the best option. This usually costs somewhere around $600.
How Many Claims Can My Design Patent Application Have?
Design patent applications can only have one claim. In contrast, utility patent applications can have several.
How Many Design Patents Can I Apply For?
There is no limit to the number of design patents you can apply for. However, if you plan to market several unique designs, a separate application will be required for each patent.
Who Can File a Design Patent Application?
An individual or business can file a design patent application. Further, the applicant can be based anywhere in the world.
Can My Design Patent Be Based on a Registered Community Design?
Yes, your design patent can be based on a European Registered Community Design (RCD). However, you must file the design patent application within six months of the RCD filing date.
Will My Patent Application Be Published?
Your patent application will not be published if it is a design application. Utility patents can be published if they were filed on or after November 29, 2000.
How Long Does the Design Patent Application Process Take?
The application process usually takes 12 to 18 months.
You can also try to get foreign priority. You can do this any time after you file for up to six months for design patents and one year for utility patents. This only works in countries that subscribe to the Paris convention.
How Long Does a Design Patent Last?
Design patents last for 14 years from the date of issue. During this time, no one can make the same product or use the same design without your permission.
What Steps Should You Take Before Filing a Design Patent?
To give your design patent better chances of being accepted, you should follow the steps listed below before filing your patent application.
- Make sure you have a good record of your invention. You should record each step of your invention process in a research notebook. In this notebook, be sure to describe in detail each aspect and modification you make with your invention. Make sure to include how you came up with the idea. If your invention requires you to build and test a prototype, you should document this process. If possible, sign and date each entry along with two witnesses.
- Verify that your invention will qualify under the rules of patent protection. It is important to note that you cannot get a patent just for having an idea. You will be required to not only show that your invention is new when compared to other previous inventions but also show how it works.
- Determine any commercial potential your invention has. Filing for a patent is a business decision, and with that decision comes some expense. If you choose to file for a patent on your own, it will cost approximately $1,500 once you have paid all of the filing fees to obtain the patent from the USPTO. Before just handing over the cash because you think you have a good idea, perform preliminary research on the market to make sure your design is worth the investment you will need to make.
- Conduct a patent search. The next step is verifying that your invention is considered new. This will require searching U.S. and foreign patents, technical and scientific journals, and other publications for other inventions that are similar to yours. While a patent search can be time-consuming, it is a vital component. This is an area where a patent attorney can be beneficial. You can get started with a simple search online and a visit to the USPTO library. If you find inventions similar to yours, you will need to prove that your new invention improves upon the previous similar ones.
- Prepare and file your application for patent with the USPTO. When filing your application for a patent, you will have the option of filing a regular patent application or a provisional patent application.
When filing a provisional patent application, you are not applying for the final patent, but rather a temporary one that will give you patent-pending status. This is the ideal option for someone who wants to protect their inventions while they finish fine-tuning it. A provisional patent can also be a significantly smaller investment, with fees as low as $65 for micro entities, $130 for small entities, and $260 for a large company. This type of patent will require a detailed description of how your invention is made and used as well as an informal drawing.
You will also need to file for a regular patent within 12 months to keep the provisional one from expiring. If you choose to file for a regular patent, the examination process will begin after filing.
What If My Design Patent Is Rejected?
Many patent examiners reject patent applications at least once. You will have the chance to amend or argue your application. However, there is a limited time to reply.
Keep in mind that you can't file a Request for Continued Examination (RCE) for a design patent application. These are only available for utility and plant patent applications.
How Do I Get the USPTO to Reconsider My Application After Rejection?
Write to the USPTO and request that they reconsider your application. Let them know if they made any errors. They won't reconsider it if they already found similar art that was filed before yours.
Sometimes, an examiner will ask you to reply to the rejection because your design is patentable. Make sure you follow their instructions when you reply. If you disagree with their instructions, you must be very specific with your arguments.
Include the following in your letter:
- Application number
- Group art unit (you can find this on your filing receipt)
- Filing date
- Name of the examiner who worked on your application the most
- Title of invention
- Certificate of mailing
Make sure you reply within the time period that they give you. If you do not, they will mark your application as abandoned.
Please note that including a "Certificate of Mailing" can help your chances immensely. Use a format similar to this one: "I hereby certify that this correspondence is being deposited with the United States Postal Service as first class mail in an envelope addressed to [name and address], on [date mailed]." Include your name, signature, and the date below.
If you would like to get a receipt for your letter, there is an easy way to do this. Include a postcard that already has a stamp and your address on it. List your name, address, the application number, filing date, and the types of papers that you are sending. When the USPTO gets your letter, they will stamp the postcard to show the date it was received. They will then mail it back to you. It will prove that they got your reply on that date.
How Much Does It Cost to File a Design Patent Application?
The cost of a design patent depends on whether you file as an individual, a small business, or a large business. If you hire an attorney, you might also have to pay several thousand dollars in fees. You can lower your costs by registering to use the USPTO's Electronic Filing System. This method also allows your application to be filed more quickly. The USPTO levies standard design patent fees:
- Design Patent: $180, $90, or $45
- Design Patent Search: $120, $60, or $30
- Design Patent Examination: $460, $230, or $115
Each fee differs for large business, small businesses, and micro-entities, and the amounts above are listed in that order.
Do I Have to Pay Fees After I File?
When your patent application gets approved, you must pay an issue fee of $1,000. That fee is $500 if you're a small company. If you are working with an attorney, they will manage this process. This is to make sure that everything is accurate. Your design patent will be issued and mailed to you. You will have to pay fees to your attorney for managing this process.
That said, design patents do not have maintenance fees. After you've paid your initial fees, you won't have to pay anything else toward the patent for 14 years.
Keep in mind that this is a bit different from utility patents. Utility patents have maintenance fees throughout their term. These fees increase at 3.5 years, 7.5 years, and 11.5 years after the issue date.
What Happens If I Move After I File?
If you move after you have filed your application, make sure you tell the USPTO what your new address is. If you don't, their replies to you could be sent to the wrong address. You can have your mail forwarded. However, this isn't always reliable. Send a separate "Change of Address" notification for each application that you filed.
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