Can a design patent protect your new product?
When compared to utility patents, design patents are often overlooked as an IP asset. It’s true that only utility patents protect functional features, but design patents can still play an important role in protecting features that are not so functional. Let’s explore when it makes sense to pursue a product design patent.
Can you file a design patent application for a functional product?
It is certainly possible to file a design patent application for a functional product. Companies do it all the time. Just because a product has functional features does not mean it is automatically ineligible for design patent registration.
The key is understanding what a design patent protects. While functional features may exist, you can still file a design patent application to focus on the ornamental features. In fact, you can even use certain tricks in the drawings to carve out the functional features which are not being patented.
How do you use design drawings to exclude functional features?
You may have seen design patent drawings with broken or dashed lines. What is the meaning of broken lines? They indicate that the portion or object drawn in dashed lines are not being patented. They exist for context. Here’s a helpful design patent application guide from the USPTO with some examples of design patent drawings.
File separate design patent applications to protect different parts of your product
Instead of thinking outside the box, why not focus on a portion of the box? Suppose your concept has a certain part with a unique visual appearance. For example, it can be the lid or cover of a container. Perhaps a side portion or underside is very different looking. You may have intentionally designed your product with a cool or fun feature that doesn’t really serve a functional purpose.
You can use a design patent application to cover a component of a product by carefully disclaiming the rest of the product in the drawings. I’ve written about the use of broken lines here.
A wise IP strategy may involve one design application covering the entire product, and multiple design applications covering different portions of the product. This may give you more IP rights when a competitor copies only a certain component.
Can you register a 2-dimensional graphic design or artwork as a design patent?
It is possible to patent a two-dimensional image such as a GUI. However, the drawings must still show an “article of manufacture” meaning that a product must still be drawn. To patent a graphical user interface, for example, the design drawings would show the GUI in solid lines as displayed on a device drawn in dashed lines.
The same principle would apply to artwork or graphic designs shown on consumer goods. Confer with your patent attorney to explore the option of drawing the consumer good in broken lines and the artwork in solid lines.
Here’s a USPTO example of a design patent drawing using broken lines to disclaim the structure of the product and solid lines to claim the artwork:
What is the cost of a design patent application?
The initial filing cost of a design patent application is $995, not including USPTO government fees. USPTO fees are $255/$510/$1,020 for micro/small/large entity. So our total initial filing cost starts at $1,250 for a micro entity, $1,505 for a small entity and $2,015 for a arge entity.
Our flat rate includes our fixed attorney fee of $770 plus illustrator fees for the six required design views. Additional fees may apply for more views or more complicated drawings.
Design patent applications enjoy a significantly high success rate and a low probability of rejection. Nearly 7 out of 8 design patent applications will be allowed. So it is fairly accurate to predict the overall cost of an average design patent application from start to finish.
For a small entity such as a company with less than 500 employees, the overall cost of a design patent application from start to finish is approximately $2,500 to $3,000 for roughly 7 out of 8 design filings. 1 out of 8 design filings may be subject to higher costs due to a rejection.
Thinking of filing a product design patent application?
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