When someone is awarded a design patent, it gives them the right to prevent any person or entity from using or selling any product resembling their patented product. The resemblance must be such that an ordinary observer could purchase a similar product believing it was the patented product. In 1872, the U.S. Supreme Court established the ordinary observer standard. This is a retail purchaser of goods who could be fooled by a similar product.
It could be granted for surface decoration as well as configuration or both. This patent will be issued for a product. The design must be something that is repeatable. In one case, a company had a method for applying a decorative coating to wallpaper they believed was unique. Their patent was refused. The reason for the refusal was that it consisted of a design that was deemed to not be repeatable. Should a patent have been issued, then all designs created by the process would have been protected by this decorating method. A design patent is not able to protect a method.
Why File A Design Patent Application
The reason anyone would file for a design patent will depend on how significant the appearance of a product is to them. Should their product’s appearance be of little value when compared to its function, then filing a utility patent application should be considered. If someone feels the appearance of their product is unique and something they believe must be protected from any type of knockoff product, a design patent is a worthwhile investment.
The functional features of an invention are not protected by a design patent. Unfortunately, the line between utility patents and design patents can be a bit confusing. This often occurs when a product’s appearance is its utility. This has been the case with window treatments and more.
Term Of Design Patent
The patent term for a design patent is 15 years after they have been issued. There is no need to pay any fees for maintenance or renewals. The average length of time required to get a first Office action is estimated to be 13 months. A design application’s overall time required to be granted a design patent is estimated to average 20 months.
Cost Of A Design Patent
These patents are usually quicker and cheaper when compared to a utility patent. Should an applicant be an individual or a company with fewer than 500 employees, they could qualify for filing fees at a 50 percent discount when compared to a larger entity. The United States Patent and Trademark Office (USPTO) requires applicants to pay a basic filing fee as well as a design search fee or design CPA search fee for a design patent.
A one-size-fits-all approach does not work with a design patent. This is because each product is unique. It may be a good idea to file a design patent application on key individual parts of a product as well as one for the overall product. This will make it possible for a patent owner to protect its product against any competitor who copies a portion of its product’s aesthetics.