Can you see a pending design patent application?
No, US design patent applications are not published. Therefore, the public cannot monitor or search for a pending design patent application.
Need to apply for a design patent? Contact US patent attorney Vic Lin at vlin@icaplaw.com or call (949) 223-9623 to explore how we can help patent your design.
Why does it matter that design patent applications are not published?
Unlike design applications, utility patent applications are normally published around 18 months from the filing date. Why does that matter? The publication of a patent application serves a defensive purpose against subsequent filers. In particular, a patent publication is prior art against subsequently filed patent applications.
Since design applications are unpublished, a design patent application would not serve as prior art unless and until it is granted. So you might apply for a design that may be similar to a prior-filed application, but have no idea.
Having a patent application remain confidential throughout its pendency may have some benefits. You can still say patent-pending on your product literature and packaging, and the public would not be able to find the details of your design application.
Can you search for published design patent applications?
Obviously, the answer is no. So the next question is whether you should even bother with a search knowing that unpublished design applications are not searchable. You might have valid reasons for doing a design search. For example, a search is required for requesting Rocket Docket. Just recognize that you will not be able to search for pending design patent applications.
What exactly is a patent publication?
A patent publication is not a granted patent. One of the purposes of publishing a utility patent application is to give the public notice of what an applicant is trying to patent. Making this knowledge publicly available also assists examiners in rejecting subsequently filed applications for similar inventions.
Can you infringe a design patent application?
Only issued patents can be infringed. There is no such thing as infringement of a pending patent application.
Think about it. How can you infringe a pending patent application that might never be allowed? Plenty of patent applications get rejected and ultimately abandoned. That being said, the average allowance rate of US design patent applications is high at over 80%.
When you see that a product is patent-pending, you may want to confer with an experienced patent attorney to guesstimate whether a utility or design patent application was filed. Given the high percentage of approval of design patents, you may want to plan ahead to avoid infringement if and when a competitor’s design patent is granted.
For certain products with both functional and ornamental features, it is possible that the owner may have filed both utility and design patent applications.
How long is an average design patent application?
On average, it takes approximately 17 months for the initial review of a US design patent application. The total length of an average design patent application is almost 23 months as of the date of this post. Imagine waiting a year and a half for an examiner to pick up your design patent application for the first time.
How can you expedite your design patent application?
File a Rocket Docket request. You will receive an initial examination within a couple months of the grant of your request. Even after your design patent application is filed, you have the flexibility of requesting Rocket Docket.
When are design patents published?
Since pending design patent applications are not published, a design patent would be published only if and when it is granted. Abandoned design patent applications, therefore, are not searchable. So you would not be able to find out if someone had unsuccessfully attempted to patent a particular design.
