A design patent protects the visual appearance of a product or the way that a product looks – not its function. On average, the patent office will grant the design patent in about 20.7 months as of June 23, 2022. The probability of obtaining a design patent is 83.8 %. The design patent is enforceable for 15 years from the grant date.
What does a design patent protect?
A design patent protects the visual ornamental characteristics of a product. For example, the inventive design may be in the surface texture or the external configuration of a product.
What cannot be protected with a design patent?
A design patent does not protect the functional aspects of the product. For example, the inventive design may be in the unique visual appearance of a shovel.
A design patent cannot be used to protect those functional visual aspects of the shovel, such as the leading flat portion of the shovel shown above. It needs to be protected with a utility patent.
Some inventors are attracted to their low costs, high allowance rates, and quick examination to protect the functional aspects of their product. However, using a design patent to protect your functional invention would waste money.
Example of products protected by a design patent
For Apple, their design patent was worth about 500 million dollars due to the damage settlement with Samsung. Apple’s design patents were worth more than that in its ability to stop others from copying their designs preemptively.
You can obtain design patents on any configuration, such as rings and boats.
When should a design patent be used to protect the product’s design?
A design patent has pros and cons and thus protects inventions in limited ways. They should never be used to protect an invention’s functional features. Understandably, inventors are attracted to the low cost of a design and try to protect the functional characteristics of the invention with a design, but that would be a waste of money.
You should use a design patent if the predominant selling feature of the product is its design aspects. Of course, no manufacturer will sell a product that is aesthetically displeasing. But, sometimes, you believe that your product will outsell the competition primarily due to its design features.
Read my “Best uses for design patents” article for more ideas.
What is the probability of obtaining a design patent?
The probability of obtaining a design patent is 83.8 % which is the design allowance rate. The allowance rate is calculated by dividing the number of design patent applications allowed by the USPTO’s total number of design patent applications allowed or rejected.
For this reason, no patent search is typically conducted before filing a design patent application. You should investigate prior patents if the design was copied from a different design. You need to clear the design from design and utility patent infringement. Otherwise, you could be held to infringe another’s patent willfully.
What is the process for securing a design patent?
The overall process for securing a design patent is about two years. You can reduce this period by filing a request for expedited examination. Under the Rocket Docket, you should be able to get a design patent in about 6 months.
The first step in obtaining a design patent is filing the application. You need to provide the patent attorneys with a 3d model of the design. Often, inventors want to file their design patent applications sooner than later. However, for designs, the design patent application should be filed as soon as the design elements are settled, not as soon as you have the major elements of the design.
In my experience, many inventors tinker with the design. A new design patent application must be filed each time a change to the design is made. Costs will add up, and the old filing wastes money that could have been avoided.
After filing the design patent application, the examiner will review the patent application. If there are any issues, the examiner will allow the patent application.
Upon payment of the issue fee, the design patent will grant in about 4 to 6 weeks.
What is the cost of a design patent?
Can you obtain a design patent and a utility patent for the same product?
You can obtain design and utility patents for the same product. The design patent will protect the product configuration, whereas the utility patent will protect the functional aspects of the invention.
A design patent and utility patent should be obtained only when the situation justifies it. You can look to the predominant selling feature of the product to determine if a design patent, utility patent or both types of patents should be obtained.