What is a Design Patent and How Do I Protect It? (part 1 of 2)

By James F. Hann of Haynes Beffel & Wolfeld LLP posted in patent law on Tuesday, June 27, 2017.

A design patent protects the ornamental appearance of an article of manufacture. The design must be new, original and nonobvious. Design patents cover one or both of surface ornamentation on an article and the

shape or form of the article. Design patent protection can be used for a wide range of subject matter such as a computer mouse, handle on a fork, tire tread design, floral pattern on a fabric, detergent tablets, portion of a shoe, and computer-generated icon.

Unlike a utility patent, a design patent protects only the ornamental appearance of the article, not its functional features. The drawings are the most critical part of the application: they act as the claim and define the scope of patent protection. When seeking a design patent, it is of paramount importance to ensure that design patent drawings are directed to the ornamental features chosen to be protected with other, non-important features omitted or shown as environmental structure only using broken lines. Design patent applications are maintained in secret until issued as a patent. It typically takes about 12-18 months before a design patent issues. The term for a design patent is now 15 years from its issue date.

Why should I get a design patent? They are better than nothing, and sometimes much better than nothing. Design patents have the potential to warrant significant damages if a dispute arises and litigation ensues. Compared to utility patent applications, they are relatively inexpensive to prepare and file, and usually issue relatively quickly without being substantively rejected.

What about the drawings in a design patent application? The number and type of drawing figures will change depending on the product. Sometimes, such as when the product is a slab of manufactured quartz or a length of cloth, only a single plan view is needed to illustrate the surface ornamentation. Most commonly several orthographic views and one or two perspective views are used for three-dimensional products.

Products having complex surface shapes, such as a motor vehicle or a part of a motor vehicle, or which have recessed or concave surfaces, require particular attention to ensure that the surface contours are properly disclosed. Several techniques can be used to ensure that the drawing figures provide sufficient disclosure of the surface contours of the product:

  • Use enlarged views of one or more portions of the product.
  • Use detailed, accurate shading, either line shading or stippling, or both.
  • Use cross-sectional views illustrating surface contours.
  • Use digital image drawings, similar to photographs; they can often be the best way of accurately portraying a product with complex surface contours.

Coming soon… Part 2 of 2: Advanced Design Patent Application Strategies.

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