Patents provide protection to inventors of new, useful, and non-obvious products or designs by preventing others from using, making, or selling the invention for a certain amount of time after the patent is issued. There are three main types of patents issued in the United States – a design patent, a utility patent, and a plant patent. Here, we want to discuss what a design patent is and how a person can go about filing for a design patent to protect themselves.
US patent law allows for a person to be awarded a design patent if they have invented a new or non-obvious design for an article of manufacture (the word manufacture here is used specifically to mean something that is manufactured to be used or consumed). A design patent provides protection only for the appearance of an article but not for any of the functional features or structural features.
For the purposes of a patent, the design of an object will consist of the visual ornamental characteristics embodied in the object or applied to the object of manufacture. Because design is manifested in appearance, this means that a design patent can relate to the:
A design patent does not last forever. When a person obtains a design patent from the US government, they will hold the patent for a term of 14 years from the date the patent is granted. As opposed to a utility patent, there are no fees necessary to maintain a design patent once it is in place.
There is often confusion about the difference between a design patent and a utility patent. As we mentioned above, a design patent will only include the way the object looks. While a design patent may include elements related to “how” the object works simply by the nature of the shape of the object, this does not give the same protection as a utility patent.
Any person wishing to protect the way an object of manufacturer does something, the composition of the object, or the underlying machine will need to obtain a utility patent as well. It is not uncommon for inventors to obtain both design and utility patents at the same time, though these two types of patents expire at different periods.
Any person who wishes to obtain a design patent will need to file an application with the United States Patent and Trademark Office (USPTO). When you begin the patent process, you will see that you can obtain either a provisional patent or a non-provisional patent.
A provisional patent will protect the applicant for a period of one year as they work to figure out the specifics for their design. A non-provisional patent application will officially start the process for the USPTO to determine whether or not the design is eligible for patent protection.
The process of obtaining a design patent can be complicated. We strongly recommend that you work with an Orange County intellectual property lawyer who has experience helping clients handle design patents so you can be sure that you are properly protected. An attorney will be able to use their resources and legal expertise to walk you through the entire process, including filling out the provisional or non-provisional application, paying the appropriate fees, and handling any issues that may arise during the filing process.