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?
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