What Is a Design Patent?

Knowing how to patent a design is a part of our how to patent an idea series.

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 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

1. 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.

2. 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.

3. 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.

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 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

4. 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.

5. 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.

Why Are Design Patents Important?

Design patents give you the exclusive rights 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.

  • They Are Relatively Easy to Get

Design patents are less expensive and easier to receive than utility patents.

  • They Are Becoming Easier to Enforce

In recent years, design patents have 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.

  • The Design Isn't Patentable

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.

Deadline

There is no deadline for filing a design patent application. However, you should file it as soon as possible to protect your rights. The United States Patent and Trademark Office (USPTO) can take several months or even years to approve a patent application.

Frequently Asked Questions

  • 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 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.

  • 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 date of issue. During this time, no one can make the same product or use the same design without your permission.

  • 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 address to: [fill in], 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 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 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:

Description

Large Business Fee

Small Business Fee

Individual Fee

Design Patent

$180

$90

$45

Design Patent Search

$120

$60

$30

Design Patent Examination

$460

$230

$115

  • Do I Have to Pay Fees After I File?

When your patent application gets approved, you must pay an issue fee of $1000. 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 get 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.

If you need help with filing a design patent, you can post your questions or concerns on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel hold degrees from law schools such as Harvard and Yale and average 14 years of legal experience including work with or on behalf of companies like Google, Stripe, and Twilio.