What are your chances of getting a design patent?
A helpful way to estimate your probability of success in obtaining a US design patent is to consider the average design allowance rate which is the percentage of design patent applications allowed by the USPTO. In fiscal year 2021, the design allowance rate was over 85%. While your design patent probability of success cannot be guaranteed, it is encouraging to know that the vast majority of US design patent applications are ultimately allowed.
What can reduce your chances of success in a design patent application?
Several problems can lower your probability of obtaining a US design patent. Some are minor issues that can be easily corrected. Other issues can be more serious and possibly fatal.
One of the most common issues that arise in design patent applications is the quality of design patent drawings. Unlike utility patent figures, design patent drawings must meet strict requirements established by the USPTO. Drawing features such as surface shading may often be lacking or deficient in design patent applications originating from foreign applicants or claiming priority to foreign priority applications.
Can your design patent application be rejected for not being new or unique?
Design patent applications do not encounter as many rejections based on the prior art in comparison to utility patent applications. Nevertheless, design patent rejections do occasionally occur when the patent examiner finds a very similar design in preexisting patents, products or literature. With images readily searchable on the Internet these days, it’s not as difficult to find a prior product with a similar appearance especially if the examiner is already of one.
If applicants are aware of any similar preexisting designs, they have a duty to disclose known and relevant prior art to the USPTO by filing an Information Disclosure Statement (IDS). We occasionally receive inquiries from existing and potential clients on whether we think their new design is patentable over certain prior designs known to them. Regardless of what we think, those known prior designs would have to be disclosed to the Patent Office if they decide to file a design patent application.
How does design patent probability compare to utility patent probability?
Whereas design patent applications generally enjoy a high rate of success, utility patent applications typically encounter a high rate of rejection at least during the initial examination. With an 86% initial rejection rate, you can expect that the overwhelming majority of utility nonprovisional patent applications will receive at least one patent rejection. So when you compare the 86% utility patent rejection rate to the 90% design patent allowance rate, you start to see how design patent applications are so much easier to obtain.
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