Design Patent Process

Fundamentally, the process of filing a Design Patent application boils down to a fairly simple procedure. We first have an exploratory discussion with the inventor and gain a foundational understanding of the client’s invention. After this initial consultation, the client sends us a series of documents including a three dimensional view, two side views, a top view, and a bottom view. After analyzing these drawings, we ascertain that the design is indeed patentable and subsequently prepare a design patent application based. The patent application describes each of the aforementioned views. Once the application is prepared, it is forwarded to the inventor in order to make sure it covers all of the client’s ideas and expectations. Once approved by the inventor, it is filed with the USPTO.

Importance of Design Patent Search

There are a variety of circumstances that should be considered when examining the benefits of a Design Patent Search and it would be useful to discuss several of them in order to appreciate why this tool is so very powerful. Primarily, an inventor who seeks to gain a design patent on a new invention must ascertain whether or not his/her idea is in fact “new.” A Design Patent Search consists of a robust and comprehensive search of patents and patent applications that have already been filed and issued by the USPTO and allows the researcher to determine if the new invention infringes on a patent already in existence.

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When Do I Need One?

When a utility patent is unobtainable because the product lacks a new function or structure, a design patent can still be obtained to protect its ornamental or aesthetic features.

A design patent is very different from the more common utility patent. The design patent has a disclosure that is primarily limited to the drawings filed with the patent application.

Most of the effort in preparing a design patent application is centered on illustrating the shape of the product in as general terms as possible, to get the most protection. Unless the shape of the new design is similar to an existing product, much of the effort during the examination process in the Patent Office involves formalities, often concerning the drawings.

How Long Does It Last?

A design patent has a life of fourteen years from the time of issue and unlike a utility patent, no maintenance fees are required. Please note that the term of the design cannot be extended past the granted fourteen years. Once this time period is up, it falls into the public domain and the inventor no longer has the right of exclusion. A patent can also expire if the USPTO determines that is invalid because it infringes on a previous patent already issued. Other ways that the design patent is not enforceable entails the circumstance in which the patent was fraudulently obtained or if it was used to commit illegal activities.

Goals and Specific Benefits of a Design Patent

The design patent application is relatively quick and easy to prepare, especially considering the lengthy process required for a utility patent. Therefore, in the event that a business feels particularly compelled to proceed with a utility patent but is concerned with the amount of time until its completion, it is advisable to file both a design patent and utility patent thus gaining at least preliminary protection almost immediately.

The cost of filing a design patent is fairly inexpensive and is far cheaper than a utility patent. This allows the individual to comfortably proceed with his/her invention and gain legal protection while pondering the cost/benefits of pursuing a utility patent.

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Essentially, design patent infringement involves violating an individual or company’s intellectual property with the making, using, or selling of a patented design. Often, inventors will attempt to alter or modify the shape or design embodied within a design patent in order to avoid this issue. While they may believe this tweaking of the idea is enough to render it a new and novel idea, often it is not. Minor differences do not necessarily prevent a finding of a patent infringement.

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Howard M. Cohn & Associates has extensive and varied experience in all aspects of Intellectual Property law, with a unique specialty in patent and trademark preparation and prosecution. Schedule an appointment or call us at 800-613-1067.