A design patent protects the look of a product and not the function of the product. If you need a design patent, continue reading to learn more about costs and best practices.
How much does a design patent cost? A design patent application will cost about $2,000 to $3,500. After submission, examination costs will be around $1,000 to $2,000. In total, you’ll spend about $3,000 to $5,500 for a design patent as long as the examination goes smoothly. Read below to learn about best practices to maximize the benefit of a design patent.
For the cost of a utility patent, read: How much does it cost to get a utility patent? To find out if you should file a utility patent or a design patent, read: Deciding what application to file: Design or Utility? and Best uses for design patents
Let’s dive in.
Best practices for design patent protection?
Best practice #1: Get your 3D CAD model
You should get the three-dimensional computer-drawn model for your design. Don’t have the draftsperson doing the patent drawings do it.
The patent draftsperson can modify your drawings so that it is acceptable to the standards of the United States Patent and Trademark Office (USPTO). However, they are not product designers. They can’t go back and forth with you to make your design look stylistically acceptable to you.
A patent draftsperson can place the CAD file into the following form if provided with the CAD file.
However, if the patent draftsperson did not have a CAD file in hand, then it would probably look like the diagram below, which is not acceptable for a design patent. It is acceptable for a utility patent. Draftspeople who work on patent drawings are good for schematic drawings or placing detailed CAD drawings provided by clients into an acceptable form for USPTO purposes.
By hiring a product designer, that person will be able to go through the design iteration process that you need. The product designer can get the product to look just the way that you want it.
Best practice #2: Submit close to the product launch date
You should submit the design patent application as close to the product launch date as possible.
By submitting the design patent application as close to the product launch date as possible, the drawings will most likely resemble the product you are selling.
Here is typically how the product launch progresses. The inventor, you will settle on the product design but won’t be fully satisfied with it. So, you tinker with the design over a period of time. Tinkering with the design is good.
However, for the design patent purpose, the design shown in the design patent should match the product actually being offered and sold in the marketplace. If not, then the product being offered and sold in the marketplace might not actually be patent protected.
To mitigate the risk that you would change the product design after submitting the patent application, one way would be to submit the design patent application as close to the product launch date as possible.
Once you’ve selected your patent attorney to help you through the process, he or she should be able to get the design patent application ready in about 2 to 3 weeks or even sooner if needed. However, the key to select your patent attorney about 6 to 8 weeks in advance before the product launch date.
If you want to submit it well before the product launch date, then I recommend that you select a milestone in the product development cycle. For example, you might file the design patent application right after you cut the injection molds. Injection molds are very expensive. As such, you have to commit to the design to cut the injection molds. Because of this commitment, you can file the design patent application at this time.
If you significantly change the design after submitting the design patent application, you may have to refile the design patent application. Consult with your patent attorney if you make any changes to the design.
Cost breakdown for a design patent:
|Attorney fees:||about $1,200 – $3,000)|
|Government filing fee:||(about $250 to $2000)|
|Drawing fees:||(about $500)|
|Total:||About $1,950 to $5,500|
You will be spending about $1,200 – $3,000 on attorney fees. They will let you know if the design patent application route is better or if you should get a utility patent. Moreover, they should help you layout the drawings so that you don’t make the drawings overly narrow.
Design patent government filing cost
These are the fees paid to the government. When you initially submit the design patent application, then you have to pay the USPTO filing fee. The amount is based on whether you are a micro-entity, small entity or large entity. If you receive a notice of allowance, then the government fee will be dependent on your entity size. Attorneys will add a few hundred dollars to the fees as a service charge.
|Micro-entity||Small entity||Large entity|
|USPTO Filing fee||$250||$500||$1,000|
|USPTO Issue fee||$250||$500||$1,000|
If you prepare the 3D CAD drawings, then the patent draftsperson will take those drawings and put them into the proper form for the USPTO. The cost of this service will be about $500. This cost is paid at the time of submitting the design patent application to the USPTO.
Best cases for a design patent?
Lazy copy cat competitors
Design patents protect the look of a design as shown in the drawings of the design patent. That is it. It does not protect the function of the product shown in the drawings.
If someone makes the product look different but it functions the same, the competitor did not infringe on the design patent. If this result is unacceptable to you, then you may need to file a utility patent, as discussed below.
When your competitor just mimics your design without any thought, then the design patent works fairly well to get that lazy competitor off of the market. However, the competitor can come back on with a similar but different product if they did some work to make the products look differently.
Hence, design patent protection works to protect a business against the lazy competitor who just merely copies your product.
Products sold in sets
If you sell products in sets, then design patents work well to protect the common feature among the components of the set. For example, if the dining table set contains a unique carving, then it may be a good idea to protect the unique carving of the furniture. Your customers would have to buy your design patented unique carving. Customers would be locked into your brand because you have the patent on it.
Manufacturer selling out the back door
Sometimes, manufacturers will use your molds to make products and sell them out the back door. Unfortunately, they are stealing your business. However, a design patent is effective at stopping this type of behavior. Because your manufacturer is using your own molds, the product that they sell out the back door will be identical to the product shown in your design patent.
Even though a design patent only protects the look of the product, it is effective at stopping this type of behavior. Typically, if your manufacturer is overseas, then it is harder to stop the behavior. However, when their product shows up on Amazon and it looks identical to your product, then you can stop them.
If you have a product that looks cool, then you should consider getting a design patent.
How do you get a design patent?
To get a design patent, you have to have your product design in a computer-aided design format. The patent draftsperson cannot come up with the design for you. After your 3d CAD model is available, then the patent attorney can review and get the views that are necessary for the design. Once the views are drafted, then the design patent application can be submitted with the USPTO.
The bottom line is that to get a design patent, you have to submit drawings of the product to the USPTO.
How long does it take to get a design patent?
The patent process for a design patent will take about 9 months to 14 months after it is submitted to the USPTO. If there are rejections or issues with the design patent application, then the process could take longer.
Design patent vs. utility patent
A design patent protects the looks, aka ornamentation of the product. A utility patent protects the functional aspects of the product. You can tell which one you should get by the language you use to describe your product. If you use words that describe the aesthetics of the product, then you most likely should get a design patent. If you use words that describe the function of the product, then you should get a utility patent.
Example design patent
Products in all categories can be protected by a design patent. See the examples below.
However, not all products should be protected by a design patent. If you are trying to protect the exact look of a product, then design patents work great. However, if you are trying to protect a general style or feel, then design patents do a poor job of protecting a style or look.
|Lego – “Everything is awesome”|
|Wheel rims – vroom vroom|
|Tire tread patterns|
Patent search for a design
The allowance rate for a design patent application is higher than the allowance rate for a utility patent application. Moreover, because the cost to prepare and submit the design patent application is slightly higher than the cost to conduct a design patent search, many inventors don’t do a patent search for their design to find out if they can get a patent on it.
If you based your design on someone else’s design then you should let your patent attorney know. He or she will have to consider the other person’s patent and determine if there is design patent infringement.
What is a poor man’s patent?
A poor man’s patent is a myth. People would tell you to mail a description of your invention to yourself. Because the United States Postal Service is a regular service, you could rely on the mail date to establish a date of invention. Do not do this. Anyone can mail a letter to themselves then open it up and put anything inside of the envelope. The evidence is essentially worthless.