Design patents: pros and cons

Basic types of patents

Three types of patents are issued by the United States Patent and Trademark Office.

1. Utility patent;
2. Design patent; and
3. Plant patent (not discussed here).

Basic differences between utility and design patents

Each of these types of patents cover different aspects of an invention.

Utility patents protect functional features. Design patents protect ornamental features such as shapes and patterns. Plant patents protect asexually reproducing plants.

Although utility and design patents protect mutually exclusive aspects of the same product, it protects different features of a product. Typically, start ups will have an idea to improve a specific problem in an industry. This improvement is typically a functional improvement in that the idea makes something better, faster, cheaper, smoother, etc.

Once a working embodiment of the idea is built, the shapes of the prototype may be protected by a design patent. Since design patents protect only what is shown in the drawings, it is important to file the design patent application with the actual look of the product as it will be sold. If your product looks different from the design shown in the design patent, you may have a product that is not protected by the design patent which was supposed to protect the product.

Limitations of a design patent

The cons of a design patent is that it only provides a narrow scope of patent protection. It only protects what is shown in the drawings. If a competitor copies your product but makes it look different then there is no design patent infringement.

Benefits of a design patent

The pros of the design patent is that:

1. Design patent applications historically have a higher allowance rate than utility patent applications.
2. Design patents applications are examined quicker than utility patent applications. Instead of waiting 2 or 3 years for a utility patent application to be filed, design patents applications may be examined and allowed within one year. Hence, you can mark your product patented quicker
3. If the design is important for the sale of the product, then the design patent operates optimally. For example, design patents are great for exterior replacement parts where owners want the exterior to look like the original (e.g., vehicle replacement parts).

I invite you to contact me with your patent questions at (949) 433-0900 or James@OCPatentLawyer.com. Please feel free to forward this article to your friends. As an Orange County Patent Attorney, I serve Orange County, Irvine, Los Angeles, San Diego and surrounding cities.

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James Yang is a patent attorney whose practice encompasses all areas of intellectual property law including patents, trademarks, copyrights and trade secrets.

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James Yang is an Orange County patent lawyer and welcomes potential clients throughout California including Orange County, Riverside County, Los Angeles, San Diego, Santa Ana, Irvine, Orange, Anaheim, Newport Beach, Huntington Beach, Tustin, Brea, Fullerton, Buena Park, Mission Viejo, Lake Forest, Laguna Niguel, Stanton, San Clemente, Laguna Hills, Laguna Niguel, Cypress, Laguna Beach, Coto de Caza, Costa Mesa, Aliso Viejo, Ladera Ranch, Dana Point and Foothill Ranch.
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