How Are Design Patents Different From Other Patents?

Design patents are a relatively recent type of patent that protects non-utility inventions, such as the creative or decorative elements of manufactured items.  Design patents usually apply to design elements of a thing that are non-functional, and thus not eligible for a utility patent, but that also wouldn’t necessarily be eligible for copyright or trademark protection.  In some cases, designs that may be eligible for design patent may also be eligible for copyright or trademark protection as well, but the design patent adds an extra layer of protection for the inventor seeking damages for infringement of the design.

A design patent is frequently a good idea if you’ve invented a new design for some item that is distinctive and, in some way, helps distinguish the item as being uniquely made by you or your business.  They are often a way of gaining some measure of patent protection for items that otherwise can’t themselves be patented.  For example, furnishings such as bed frames and wardrobes can’t themselves be patented, but unique ornamentation on those furnishings could be the subject of a design patent.  Similarly, athletic shoes can’t be patented, but you could get a design patent for a unique pattern of treads on the rubber soles of athletic shoes. 

Design patents don’t require a specification or claims as for utility patents.  The drawings of the design patent application essentially function as both the description and claims.  Since there are no written descriptions for the design, the drawings must be carefully crafted to depict both the design and the context in which the design appears.  Poorly conceived drawings may end up narrowing the scope of the claimed design or unintentionally limit the contexts in which the design applies.  Similarly, drawings that don’t adequately depict the specific design may be rejected and can end up barring issuance of a patent on your designs.

A well-planned and executed design patent portfolio is a valuable business asset.  As they last for fifteen years from issuance, design patents are an investment in long-term protection for your distinctive and unique product lines.  A broad portfolio of design patents, often in conjunction with trademark registrations, ensures that would-be imitators cannot easily get away with copying your products and passing off inferior items to consumers.  Design patents may also be lucrative licensing opportunities to manufacturers who want to make use of your unique designs in their own products.

Mark Kittel

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