Design Patent. A design patent is for a new and nonobvious ornamental design for an article of manufacture. This includes a design for an ornament, impression, print, or picture applied to or embodied in an article of manufacture. It further includes a design for the shape or configuration of an article of manufacture. However, a picture standing alone is not patentable.

Do I need a design, utility or plant patent? See the FAQ that describes "What is Patentable" in each type of patent.

Protection. A design patent protects only the appearance of an article, and not its structural or functional features.

DESIGN PATENT APPLICATION REVIEW

Proceedings. The proceedings relating to granting of design patents are basically the same as those relating to utility patents.

Drawings. The value of a design patent is largely dependent upon the skillful preparation of the drawings. Drawings are normally required to be submitted in black ink on white paper. Photographs are acceptable only in applications in which the invention is not capable of being illustrated in an ink drawing or where the invention is shown more clearly in a photograph. Color photographs or drawings are also not permitted unless there is a good reason, a petition and additional fee is filed and the petition is granted. When it is urgent to get a filing date, color photographs/drawings can be submitted, but these will be considered by the Patent Office to be informal drawings and will have to be replaced by amendment to the application.

DESIGN PATENT APPLICATION COSTS

Costs. Expect a design patent application to cost about $1,170 through filing. The $1,165 includes attorney fees of $950 plus estimated filing costs for a small entity of $220 ($440 for a large entity).

United States Patent and Trademark Office filing and patent issuance fees for a design patent add about $410 for a small entity ($820 for a large entity). There is no publication fee for a design patent. Also, no fees are necessary to maintain a design patent in force. United States Patent and Trademark Office filing charges may vary.

(According to the American International Property Law Association 2007 Economic Survey, the typical attorney fees in 2006 for preparation of a design patent application are $1,500.)

Services After Filing. Attorney fees for a small entity after filing are charged at the rate of $150 per hour. The Law Firm's large entity hourly fee is $250 per hour. Patent prosecution activities after filing are similar to a utility application, but are usually much less complex. If the Patent Office examination leads to a determination that an applicant is entitled to a design patent under the law, a notice of allowance is sent to the applicant’s attorney, calling for the payment of the issue fee. Attorney fees for filing the allowance papers are $250.

DESIGN PATENT LIFETIME

Patent Lifetime. A design patent has a term of 14 years from grant.

DESIGN PATENT APPLICATION UNIQUE ASPECTS

Patent Application Structure. The specification of a design application is short and ordinarily follows a set form. Only one claim is permitted, following a set form. The drawing of the design patent conforms to the same rules as other drawings, but no reference characters are allowed and the drawing should clearly depict the appearance, since the drawing defines the scope of patent protection.

PCT - Patent Cooperation Treaty? No. International design patent applications may not be filed under the PCT.

Provisional Applications? No. One may not file a provisional design patent application.

Design Applications Published? No. Design applications are not subject to application publication after 18 months as are utility applications.

PROCEEDING TO A DESIGN PATENT APPLICATION

How to Proceed. Telephone (703-242-1247) or email Louis Ventre, Jr. with a short description of the design you want in your application. If the Law Firm has no conflicts and agrees to represent you, you will be sent a retainer agreement with additional instructions on what information is needed. As with utility patents, a preliminary search of U.S. patents and U.S. applications will be done to make a judgment on patentability. After you receive the preliminary patentability determination, if you then decide not to submit an application, your retainer will be refunded less any cost the Law Firm had to pay the charge card company to process your credit card payment (if any) of the retainer.

INFRINGEMENT OF A DESIGN PATENT

Design Patent Infringement. To have infringement of a design patent, two conditions must be present:

The ordinary observer would regard the accused design to be substantially the same as the patented design without regard to the functional aspects of the design. However, one looks to the overall similarity and not an element-by element comparison. One should not focus on the minute details or small variations in configuration, but rather on the overall design. For example, if an ordinary purchaser would be deceived, inducing him to purchase one supposing it to be the other, then first one patented is infringed by the other. Functional aspects are those that are "essential to the use or purpose of the article or if it affects the cost or quality of the article." And,

The accused device appropriates the "points of novelty" in the patented design that distinguish the design from the prior art. If each of the alleged “points of novelty” or non-functional features of a patented design was disclosed in prior art, there can be no infringement, even if there is no suggestion to combine the features from the prior art.

MORE INFORMATION ON PATENT APPLICATIONS

More Answers on Patents. A vessel hull design may also be registered under a copyright law as explained on the Law Firm's copyright page. See the FAQ page for more questions answered on patents, the plant patent page for information on plant patents, and the Utility Patent Details page for general patenting details.

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This file last modified 01/04/08.
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