What does it take to patent a design?
Before diving into how to patent a design, let’s first cover the why questions. Why do you want to get a design patent? Why is a design patent as opposed to a utility patent the right type of IP for your idea? Get these foundational questions answered first. Then you’ll be ready to move forward with a proper strategy for protecting your IP.
Sometimes when clients mention “design,” further discussion will uncover that the concept is actually more functional in nature. If after further consideration you think a utility patent would be more appropriate, here’s a helpful post on filing a utility nonprovisional patent application.
2D or 3D design, or both?
Are you trying to register a GUI or two-dimensional graphic design as displayed on a product? Or, have you created a unique 3-dimensional product or a specially shaped component? Perhaps you want to cover both the shape and two-dimensional artwork on the product. Make sure you articulate what you mean by “design” when you talk to your patent attorney.
Show your design or keep it confidential?
Timing is critical when it comes to patent protection. So let’s begin by asking whether you have already publicly disclosed or sold your design. If so, you have only one year from the earliest date of public disclosure or sale to file US patent applications. Foreign filings will generally be unavailable for any concepts already disclosed to the public.
Mark that one-year anniversary on your calendar, and make sure to mention it to your patent attorney.
If your concept has been kept confidential, good for you. You have some options, including the right to apply for foreign patents.
Should you get a patent search?
With the average statistics of a USPTO design approval being encouragingly high, you might want to skip a patentability search. Others might disagree with this approach, but the data shows that odds are highly in your favor. The percentage of USPTO design cases approved was around 86% in fiscal year 2022. When nearly 7 out of 8 design filings will be allowed, why spend money on a search?
There is one exception for design filings. A patentability search is required if you wish to expedite your design patent application with a Rocket Docket request.
Do you need pictures in order to patent a design?
Black-and-white line drawings are the most common figures used in design filings. Unlike utility patent drawings which are given more latitude, design patent drawings must meet strict USPTO requirements. So using a professional patent illustrator experienced in design drawings can minimize future objections from the USPTO. Ultimately, an experienced design patent draftsman can save you time and money.
Skilled illustrators are able to create line drawings from your product photos. However, make sure you provide pictures from various angles. Since a number of different views are required, photographs taken from such views will help illustrators avoid imagination in creating the design drawings.
If you have any electronic drawing files of your concept, such as CAD or STP files, make sure to send them to your patent attorney. The illustrator may be able to use your electronic and speed up the turnaround time. In our experience, our preferred draftsmen typically take about one week to prepare design drawings.
Can a design patent cover a specific material?
It is possible to cover a specific material in a design patent. For example, here is design drawing showing transparent material.
Is a prototype required for applying for a design patent?
No, a prototype is not required to file either a utility or design patent application. That being said, a prototype can be especially helpful in filing a design application because it will force you, the inventor, to specify certain details, such as the proportions, etc. If you do not have a prototype, then it would be greatly helpful to have 3D renderings, such as STP or CAD files, showing exact features and proportions.
Do you need a written description in order to file a design patent application?
The written description for a design filing is short and sweet. The specification will comprise a title, descriptions of the views and a single claim.
Though it seems simple, coming up with a good design title may involve some strategy. You are not only giving your product a name. Think about how competitors will try to limit the scope of your patent rights due to your patent tile. If the substance or material of your product is important, consider specifying the material in the application.
What is the cost to file a design patent application?
Our flat rate for preparing a design patent application with drawings is $995, not including USPTO fees. With USPTO fees, the total initial filing cost will start at:
- $1,250 for a micro entity;
- $1,505 for a small entity; and
- $2,015 for a large entity.
Here’s our initial filing cost breakdown for a design patent application:
- $770 – our firm’s flat rate to prepare and file a US design patent application;
- $225 to $400 for professional design patent drawings of the required views to conform to strict USPTO design drawing rules; and
- $255 for a micro entity, $510 for a small entity or $1,020 for a large entity are the USPTO fees.
Total costs to obtain a US design patent will depend on whether you need to respond to a rejection. If there are no Office Actions – which will be the case in the majority design patent applications – then the total costs is fairly predicable.
Here are our total cost estimates to patent a design if there are no rejections:
- $2,025 to 2,300 for a micro entity;
- $2,500 to $2,800 for a small entity; and
- $3,400 to $3,700 for a large entity.