How to Secure Your Design Patent Application

While many people associate patent protection with utility applications, it’s important not to overlook the value of a design patent. In fact, for businesses and startups, a design patent can be the most valuable form of intellectual property to invest in.

If you are an e-commerce business owner, securing a design patent is crucial. It allows you to file intellectual property rights violation notices on platforms like Amazon, eBay, and Facebook. This means that you can swiftly remove any infringing products from your store.

For businesses in industries such as consumer goods, software, electronics, apparel, medical devices, and sporting goods, a design patent offers cost-effective protection for your proprietary products. It’s a more affordable alternative to a utility patent.

Understanding How a Design Patent Works

To obtain design patent protection, you need to file a design patent application with the USPTO. According to the USPTO, a design refers to a “set of visual ornamental features that are incorporated into or applied to a manufactured object.”

The first step is to ensure that your design hasn’t been publicly disclosed for more than a year since filing your patent application. If it has, you won’t be eligible for patent protection.

The second step involves demonstrating that your design is novel and non-obvious. This means that it must be different from previous inventions and not an obvious variation to someone skilled in the art.

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Once your design meets the eligibility requirements, you can begin preparing your application. The drawing figures included in your application are crucial and should indicate the “character and contour” of all surfaces of the object. Proper shading and broken lines are essential to avoid rejection.

What Does a Design Patent Protect?

A design patent protects the non-functional, new, original, and ornamental shape, configuration, or decoration of an object. The emphasis is on the visual design rather than the object’s functionality.

Design Patent vs. Utility Patent

When considering patent protection, you need to determine where the point of novelty lies. If it’s in the non-functional ornamental design, a design patent is the appropriate choice. However, if the novelty encompasses both the ornamental design and functionality, you may consider obtaining both a design and utility patent.

Protecting Your Software UI with a Design Patent

Software companies can also benefit from design patents. Protecting elements like Graphical User Interfaces (GUI), loading screen changes, and other ornamental aspects can be invaluable. For example, if your GUI’s two-dimensional image is displayed on a computer screen or mobile device, it may meet the “article of manufacture” requirement for patentability.

Your GUI design patent application may include multiple embodiments, as long as they relate to a single design. Specific elements should be indicated using dashed or broken lines. Make sure to include a broken line statement to define the claimed portions of the GUI.

How Long Does It Take to Get a Design Patent?

Although there are rumors of long waiting times for patent approval, the current pendency time for a design patent application is 16.4 months according to the USPTO. However, for an additional fee, you can expedite the process through a “Request for Expedited Examination” and take advantage of the USPTO’s “Rocket Docket.”

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Speeding Up the Design Patent Process

If you don’t want to wait for the average pendency time, you can request expedited examination for your design patent application. This option, available upon filing, allows you to bypass the long queue of pending applications. By doing so, you can expect a first action from the USPTO in approximately 2.9 months.

Calculating the Cost of a Design Patent

One of the advantages of a design patent is its affordability. The cost depends on the filing status of your business:

  • Micro entity: $190
  • Small entity: $380
  • Large entity: $760

Given the complexities of the patent process, it may be wise to engage a patent attorney. They can help you navigate the requirements and prevent errors that could cause delays or rejection of your application.

At the Rapacke Law Group, we offer design patents for $2850, which covers all attorney fees, draftsman fees, and USPTO filing fees. Additionally, we provide the RLG Guarantee. This means that if your design does not receive a Notice of Allowance, we will provide a full refund.

Evaluating Your Chance of Receiving a Notice of Allowance

If your design patent application is properly filed, you can expect it to be evaluated by one of the 288 design patent examiners at the USPTO. With an over 82% chance of receiving a Notice of Allowance, your application stands a good chance of success.

Examples of Successful Design Patents

To ensure the originality of your design idea, it’s helpful to compare it with existing design patents. This comparison can also provide insight into the information you need to include in your application.

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Some well-known examples of design patents include Apple’s iPhone, Crocs shoes, the original Coca-Cola bottle, vehicle designs, and user interfaces. Companies like Nike, Adidas, Apple, Samsung, Porsche, Ford, and General Motors are prominent patent applicants in various industries.

Patenting a Logo Design

If you’re looking to protect your logo, consider trademarking or service marking instead. Logos can’t be patented because patents only apply to inventions, processes, and ornamental designs applied to objects. Trademarks, on the other hand, protect brand identifiers associated with products or services.

Identifying Design Infringement

Determining whether someone is infringing your design patent requires the expertise of an experienced patent attorney. While conducting an infringement analysis requires legal knowledge, there are preliminary steps you can take. Purchasing the allegedly infringing product allows you to conduct a basic “ordinary observer test” by comparing it side-by-side with your own product.

For a successful design patent infringement claim, an ordinary observer should not be able to distinguish between the patented design and the infringing product. If the articles appear identical, it’s important to seek assistance from a patent litigation firm experienced in design patent matters.

Consult with a Design Patent Attorney

Consulting with an experienced design patent attorney offers many benefits. They can help you determine whether your design is patent eligible, guide you through the prosecution process, and explore alternative forms of intellectual property protection. If you decide that a design patent is the right choice, an attorney can assist with filing the application.

To find out if a design patent suits your needs or to get guidance on utility patents and design patents, contact The Rapacke Law Group for a free consultation today!

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