Should you file a design patent application?
A design patent protects the ornamental appearance of an invention, i.e., how a product looks and not how it works. Design patents are typically quicker and cheaper to obtain than utility patents. While they offer limited protection compared to the broader scope of utility patents, filing a design patent application may still be worthwhile if you want to protect the appearance of your product or concept from being copied.
The USPTO provides a helpful design patent application guide.
What is not protected?
While a design patent does not protect any functional features, the line between design and utility patents can be somewhat blurry especially if the appearance of a product is its utility (e.g., the appearance of decorative items such as window treatments).
How much does a design patent cost?
Design patents are typically cheaper and quicker to obtain than utility patents. If the applicant is a small entity (e.g., individual or company with less than 500 employees), then the applicant may pay USPTO filing fees that are 50% discounted from those of a large entity. As of the time of this post, the USPTO fees for the initial filing of a design patent total $480, which includes the basic filing, search and examination fees.
Illustrator fees may be a significant component of the cost. Patent illustrators may charge for each sheet of drawings (e.g., $75 to $100 per sheet), or for the entire set of drawings which may range from $250 to $750.
Lastly, attorney’s fees often comprise the largest portion of the filing costs. Our firm charges a flat rate of $750. Additional fees may apply if an IDS needs to be filed to disclose known prior art. In total, the initial filing of a design application should cost approximately $2,000 to $2,500.
How long does it take to patent a design?
As of April 2017, the average amount of time to get a first Office Action is approximately 13 months. Overall pendency of design applications is approximately 20 months on average.
How long does a design patent last?
For design applications filed on or after May 13, 2015, the patent term is
14 15 years after issuance without need for any renewals or maintenance fees. May 13, 2015 is the effective date of this change in the patent term is three months after the Feb. 13, 2015 date that the US deposited its Instrument of Accession with WIPO pursuant to the Hague Agreement.
Should you file a design application?
The answer depends largely upon the significance of the appearance of your product. If the value of your product’s appearance is small compared to its function, then you should consider filing a utility patent application. However, if you believe that the appearance of your product is unique and worth protecting from knockoffs, then a design patent may be a worthwhile investment.
Should you apply to protect the appearance of the entirety of the product or its components?
Each product is unique, so a one-size-fits-all approach will not work here. It may be wise to file design applications on both the overall product and on key individual parts. Owning design parts on key components equips the patent owner with rights to enforce against competitors who copy only a portion of the product’s aesthetics.
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