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Design Patents

Design Patents


A design patent is a different type of patent that can be extremely valuable under the right circumstances.  A design patent covers the ornamental configuration or surface decoration of an invention.  It covers the ornamental aspects of the invention and not how the invention is used or works.  A design patent must still present new subject matter in that no single, identical design must exist in the prior art.  As with a utility patent, a design patent is subject to an examination in the U.S. Patent and Trademark Office, which includes a prior-art search.  The design patent has a term of 14 years from the date it is granted.

A design patent gives the owner the right to prevent others from making, using, or selling a product that so resembles the patented product that an "ordinary observer" might purchase the infringing article, thinking it was the patented product.  The ordinary observer is generally deemed to be the retail purchaser of goods of that particular type rather than an expert, who would be less likely to be fooled.

The comparison is not made on a side-by-side basis. The test involves a hypothetical ordinary observer who, being aware of the patented design, encounters for the first time the product alleged to infringe.  The ordinary observer pays as much attention as one would typically use in deciding to purchase such a product.  The comparison must be made between the two products as they would appear in use.

The standard of infringement involves two stages. First, one must determine what ornamental features of the patented design are not shown in the prior art and whether one or more of these were appropriated by the product alleged to infringe.  If not, there is no infringement. If there was appropriation of one or more of the unique features, then a second test is applied.  One looks at both the similarities and differences between the two products to determine if there is sufficient overall similarity to deceive the ordinary observer.  If so, infringement exists.

A design patent may include more than one embodiment of design, however, those embodiments must still cover a single inventive concept.  If there is more than a single inventive concept, the application is subject to a restriction requirement.  In addition, design patent applications are unique in that they are still subject to Continued prosecution applications (CPAs).  Continued prosecution application process was eliminated as an option in utility applications on July 14, 2003.  However, the practice is still permitted in design patent applications. Legally, a CPA is a new application and its parent application must be abandoned in favor of the CPA, which requires an applicant to once again meet all of the formal requirements of a new application and pay a basic filing fee.  

Design patents should be considered when invention involves a product having unique ornamental features.  A design patent is just one more feather in the cap of an inventor looking to obtain patentable protection.  

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