Design Patents
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Whereas a utility patent protects the structure of an article and the way in which it functions, a design patent protects the way an article looks -- its ornamental features. Thus, design patents offer protection for the inventive efforts of the artist/designer. Design patents are available to protect the ornamental features of virtually any sort of tangible article or machine, including automobiles, furniture, toys and dolls, and jewelry, to name a few. Once a design patent is granted, the patent owner will have the right to exclude others from making, using, or selling the patented design for a period of 14 years. What are the requirements for a design patent?The requirements for a design patent are quite similar to the requirements for a utility patent. The design sought to be patented must be novel and not obvious to a designer of ordinary skill in the art. An application for a design patent must be submitted, and during the patenting process, the inventor and anyone else associated with the application have the same duty to be candid and honest with the U.S.P.T.O., and to disclose any relevant prior art. How is a design patent application different from a utility patent application?A design patent application is very different from a utility patent application. The primary difference between the two is that in a design patent application, the patent drawings are the most important part of the application, because the patent drawings show and define what is being claimed as the invention. The written specification portion of the application is usually very short. A typical specification will include a preamble naming the inventor or inventors and stating the name of the invention, following by a listing of each drawing figure and a very brief (usually one sentence) description of what the drawing figure shows. The written specification then concludes with a brief claim, usually written in the form "I claim the ornamental design for a [ARTICLE], as shown and described." It's important to note that the patent drawings for a design patent application must show the article from every relevant perspective, and must show every feature that is a part of the claimed design. Moreover, the depiction of the various design features must be totally consistent from view to view. If any feature is shown that is not intended to be a part of the claimed design, it must be shown in a particular manner and the fact that it is not intended as a part of the design must be noted in the written description. If the drawings are not clear, complete, and consistent, the patent examiner may reject the patent claim. What should I expect during the preparation of a design patent application?First and foremost, you will be asked to provide good quality drawings or photographs of the design for which the application is to be made. Depending on the circumstances, a patentability search may be recommended to determine whether any prior art exists that might render the design unpatentable. The sketches or photographs will be sent to a professional draftsperson who specializes in patent drawings for preparation of appropriate drawings and, in consultation with the client and the draftsperson, the written portion of the application will be prepared. As with a utility patent application, the inventor or inventors will be asked to review the application to confirm that it is correct and complete, and to sign a declaration attesting to the fact that it is their work. What should I expect during the prosecution of a design patent application?Once it is submitted to the U.S.P.T.O., the prosecution of a design patent application proceeds much like that of a utility patent application. After some length of time, a design patent examiner who specializes in the particular area of the patent application will make a search for related designs, and will communicate his or her findings in a document called an Office Action. Depending on the situation, the patent examiner may make objections to minor errors and matters of form in the specification or drawings, may reject the patent claim, or may allow the application to be issued as a patent. If the application is objected to or the patent claim is rejected, the patent examiner will give the reasons for the objection or rejection, and the applicant will be given a period of time in which to respond. If the patent application is allowed, the applicant will be given a period of time in which to pay an issue fee so that the patent application can be issued as a patent. There is no hard and fast rule as to how long the process will take, although good drawings can shorten the process tremendously. All contents copyright Andrew McAleavey. This website is for informational purposes only and should not be considered legal advice. Read the disclaimer. |