What makes a design patent better?
Design patents are quite simple. So simple, in fact, that it can be easy to overlook certain nuances that can broaden the protection provided. Here’s a common scenario. You do a bit of research into the differences between a design and utility patent, and conclude that design is the way to go. Your patent attorney will have an illustrator prepare the drawings, and then file the design patent application. It seems so straightforward and routine. So if the typical design patent preparation process is so plain vanilla, how can any particular application lead to a better design patent than another? And what exactly do we mean by better?
Let’s set some definitions. By better, we mean a patent that provides broader rights. A broader patent gives the owner greater rights to stop the competition from copying the patented design. A narrow patent, in contrast, is easier to design around. In other words, it is more difficult to avoid infringing a broader patent.
How do you make a design patent broader?
The secret sauce is in the way design drawings are drafted. More specifically, the strategic use of broken lines (dashed lines) can substantially broaden your IP rights. An experienced patent attorney can suggest ways to have the illustrations drawn with broken lines so as to broaden the scope of protection.
What do broken lines mean?
The use of broken lines in design patent drawings means that the portion drawn in such dashed lines are not being claimed. Suppose a competitive product looks substantially similar to a patented design except that certain parts of the competitor’s product are visually different. If the differences in the competitor’s product relate to portions of the drawings that are illustrated in broken lines, then an argument can be made that there is still infringement because the differences are inconsequential.
What is an example of a better design patent having drawings with broken lines?
Take a look at the US D916463 which our firm obtained for our client. In the drawing below, notice how the periphery of the suitcase insert is shown in broken lines. Moreover, notice the rectangular inserts also drawn in dashed lines.
What do these broken lines show? They are telling us that the peripheral shape of the product does not matter. A competitor that makes a product with cavities similar to the above drawings may still infringe even if the peripheral border of the product is different. So, for example, a larger or smaller size of such a suitcase insert would not matter.
How do you know when and where to use broken lines?
A careful IP strategy needs to be crafted between you and your patent attorney. Explain to your patent attorney how you think competitors will copy your invention. How might they change up certain components? What are the more likely areas of the patented design that will remain? What can be easily modified?
Knowing such competitive information upfront can lead to some effective brainstorming between you and your patent on what the drawings should look like.
Can you get a design patent faster?
You can argue that a better patent is one that is obtained sooner. Yes, you can file a Rocket Docket request which will require a pre-examination patent search and additional government fees. An expedited examination request can speed up the design patent application process by saving you roughly a year’s worth of waiting for the initial examiner review.
If it’s worth spending $2,000 to $3,500 more to get a design patent a year or more sooner, then definitely ask us about this option.
What is the cost to file a design patent application?
The initial filing cost of a design patent application is $995, not including USPTO fees. USPTO fees are $510 for a small entity (e.g., company with fewer than 500 employees), and $255 for a micro entity.
In total, the initial filing of a design application for a small entity application should cost approximately $1,505 for a small entity and $1,250 for a micro entity.