No one wants to sell or buy products that look incomplete, irrelevant, forgotten, or moldy. For better or for worse, the look matters. In many cases it can be the difference between profits and fruitless toil. You can use a design patent to prevent other competitors from copying your product designs or redesigns. It protects the aesthetic features of your product from being stolen by others. A design patent ensures that you paid for your look, and not also for your competitors’.
What is a design patent?
A design patent is a right to exclude others from making and selling the same aesthetic features in your product.
You need a design patent when you want to protect a product’s look, style, or ornamentation, as opposed to the functionality or a process.
How does a product design patent differ from a utility patent?
A design patent differs from a utility patent in that the design patent only protects the product’s aesthetics and not its function. You cannot use a design patent to protect the functional features of your product.
Industries in which design patents are most common:
- Any industry where sellers often copy others’ products. Amazon, for example, is full of products that would benefit from design-patent protection or prosecution.
- Replacement parts business, like for car parts (e.g., wheel rims).
- Disposables. You want people to buy your disposable glove, trash bag, light bulb, toner cartridge, and not a knock-off product. If you get a design patent on that, then no one else can legally make and sell one that looks like yours.
When should you hire an attorney for your design patent?
The best time for an attorney to parachute in is right after the inventor makes a 3D-computer-generated product model. Before that, you will need some agreements so that the engineers who design your product will not leak any sensitive information. For example, an invention assignment agreement will be required to assign their invention rights to the inventor. Here are a few agreement templates for your review.
Common mistakes people make when pursuing their design patent pro se
The most common mistake that inventors make when they seek design patent protection for their product is to use a design patent to try to protect functional features of their product.
Design patents do not protect functional features, but rather only the aesthetics of a product. Many inventors are drawn to the relatively low cost of a design patent (compared to a utility patent) and assume that the design patent will be good enough. Not only would that fall short of protecting the product’s functionality, but it also would most likely fail to protect any design features. Attempting this sort of half-measure is a complete waste of money.
The other mistake people make when they pursue a design patent is that they think a design patent will protect the general look shown in the drawings of the design patent. However, a design patent protects only the specific look shown in the drawings.
Helpful resources on design patents
Schedule Your Consultation
Let’s discuss your invention and goals. I am based in Orange County and work with inventors throughout the United States. You can call me, patent attorney James Yang, at (949) 433-0900, or book a consultation here.
A design patent is easier to get than a utility patent. Typically, the allowance rate for a design patent application is about 80%, whereas the allowance rate for a utility patent application is about 55%.
This means that for 100 design applications that are filed, about 80% of these mature into a design patent. Also, for 100 utility applications that are filed, about 55% of these mature into a utility patent.
In many cases, you can get a design patent and a utility patent. However, the more critical question is whether your invention should be protected primarily by a design or utility patent.
Design patents protect the look (i.e., ornamentation) of a product. Utility patents protect the functional features of the product.
You should not get a design patent to protect functional features. Also, you should not get a utility patent to protect the look of your product.
Get the correct type of patent for what you are trying to protect.
In most cases, you do not need both design and utility patents for your invention. Rather, you are trying to protect either the product’s functional features or look.
You won’t be putting out a product that looks bad. However, you will have a gut reaction as to what the product’s primary selling feature is. If it’s the look, then seek the design patent. If it’s the functional features, then seek the utility patent.
But sometimes you may want to protect both the look of your product and the functional features of your invention. Many times it’s a judgement call.
When a design element is essential to your product or brand, it’s typically worth spending the money to get a design patent.
However, getting a design patent may also be worth it when you want to protect your product’s overall look and shape.
In the end, it’s a judgement call. You can certainly schedule a consultation with me to get my feedback on your device.
All products that existed before the filing date of your design patent application are considered prior art. This is true regardless of whether you seek a design or utility patent. As such, we often recommend filing a patent application as soon as you commit to launching your product to reduce the prior art that can be used to reject your patent application.
The cost for a design pattern is less than that of a utility patent because of the time required to prepare the application.
To prepare a design pattern application, the drawings are prepared to show the look you are trying to protect. The drawings are the claims of the design patent. As such, if you have a 3D model of your product, then it’s typically very easy to draw the line art for your design patent application. Most of the work is done by your product designer.
In contrast, for a utility patent application, the patent attorney needs to prepare written text and drawings which explain in detail the principle of operation of your invention. Not only that, we need to explain the full scope of how your invention works. For example, if you have one way of doing something, we need to explain additional and other ways of doing the same thing to broaden out your patent application. This takes time and is tedious because we need to go through all of the permutations of how to accomplish what your invention solves.