What are the requirements for getting a design patent?

Are there any requirements for getting a design patent?

Design patents can be quite powerful. They are part of a complete IP package you should consider to build a moat around your product. Even though design patents are easier to get than utility patents, it is still possible for a design application to be rejected. 35 USC 171 sets forth the requirements for getting a design patent. It serves as a helpful guide on what could go wrong in a design patent application.

In this post, we will focus more on the requirements of originality and article of manufacture. For cost estimates on filing your patents, see our flat fee design patent costs.

What is an original design?

Originality relates to the creator of a design. Did the inventor listed in the application actually create the claimed design? Or, do the drawings show a design created by someone else?

In order to get a design patent, the inventor must have been the one to create the claimed design. Moreover, the claimed design must show something different than what already exists. Where this gets tricky is when the claimed design resembles something preexisting.

How can a design be original when it resembles something preexisting?

How do you file a design patent application for a product that resembles something natural or preexisting? For example, suppose you create a product that resembles something else in a fun way. It could be a cup that resembles a ball, a light fixture that resembles a plant, a toy that resembles the real thing, etc. In these situations where the applied-for design resembles something else in real life, special attention should be paid to the drawings.

Would typical black-and-white line drawings adequately capture the unique ornamental appearance of your look-alike product?

If photographs are the only way to do justice in showing the design, then you may need to consider filing photos instead of line drawings.

What is a novel and nonobvious design?

The requirements of novelty and nonobviousness apply to design patents just as they do to utility patents. Ultimately, the applied-for design must be sufficiently unique from the prior art. These requirements are technically different from the originality requirement discussed above. An inventor can truly create a design, and thus satisfy the originality requirement, while the design fails to be sufficiently unique over the prior art.

Ornamental appearance vs. Functionality: A Crucial Distinction Between Design Patents and Utility Patents

What makes a design ornamental as opposed to functional? The answer lies in the purpose of the design. If the design serves primarily a functional purpose, it most likely would not be considered ornamental. On the other hand, if the ornamental appearance is not dictated by function alone, then it would likely satisfy the ornamentality requirement.

You can imagine a number of scenarios where the overall product may serve a functional purpose while a portion of the product may be ornamental. In those cases, it may be appropriate to file both a utility patent and a design patent.

Have you satisfied the design patent requirements?

Contact US design patent attorney Vic Lin at vlin@icaplaw.com or call (949) 223-9623 to see how we can help you file a design patent to protect your ornamental design.

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Frenda Williams
Frenda Williams
2023-02-21
I have had the pleasure of working with Vic and his team at Innovation Capital Law Group on Trademark creation and contracts. As a solo and non-tech founder, the assistance, guidance and recommendations from Vic and his team have been INVALUABLE. And, with the knowledge that I have a Solid, well versed and caring legal team I can turn to, I have the confidence I need to navigate the intricacies of the tech industry as a solo founder. With that being said, If you’re a startup and you’re looking for a legal team that speaks your language, knows the industry and makes you feel like family…. Innovation Capital Law Group is a Perfect fit for you, your company and your team. Five out of Five Stars… don’t let their brilliance blind you 😁
Shiwei Liu
Shiwei Liu
2023-02-20
Excellent service and quick response. Lots of informative documents on its website.
Chang Chien Michael
Chang Chien Michael
2023-02-20
I have worked with iCap for more than 7 years. I am very glad with his professional knowledge that 7 utility patents were granted by USPTO. Vic and his team are very efficient and knowledgeable. Every time he can transcribe my design idea perfectly in two weeks and file it with no rejection from USPTO. The other service including the granted patent following up is always in time to remind me to take actions. That is why I still stick on iCap as my first priority when I want to file a US patent.
Mats Johansson
Mats Johansson
2023-02-20
We have been happy client for 10+ years. Awesome Patent Law Firm!
Hanson Chang
Hanson Chang
2023-02-16
Glad to write a review for Innovation Capital Law Group. We previously worked with a big law firm (2200 employees) on our patents, and decided to shift over to Innovation Capital. It was a great decision, this team got our patents done faster, more effectively, at a lower cost, and with broader claims. Win all around
Genevieve Springer
Genevieve Springer
2022-09-09
Clear, discernible tools and strategies couched within a business conceived from a genuine interest in doing right by founders.
InPlay Inc
InPlay Inc
2022-06-30
Vic and his team have been providing us with the best patent application experiences we could ever have in our entire career life! Their professionalism and technical knowledge have really saved us a lot of communication effort and time on the applications. Definitely highly recommend if anyone is looking for help with IP protection for their business.
Meg Crowley
Meg Crowley
2022-03-05
After working with Vic and his team at Innovation Capital Law Group, our organization is confident our trademarks were solid and protected. Thank you team.
Andy Dong
Andy Dong
2022-02-28
I have been using Innovation Capital Law Group for a few years and continue to use them. They have provided an excellent services on our legal issues including intellectual properties and patents . They are very responsive, easy to work with and very competent . I highly recommend them.

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