A design patent from the US Patent and Trademark Office (USPTO) provides protection for the unique design of your original product. Design patents generally are cheaper and have a simpler application process than utility patents, which protect the invention itself and the things it does. If you want to apply for a design patent, write out your patent application and file it with the USPTO along with payment of the required fees. Pay close attention to your illustrations. Design patents typically hinge on your depiction of the design you want to protect. [1] X Research source
Steps
Part 1
Part 1 of 3:
Writing Your Application
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Make sure your design qualifies for patent protection. A design patent doesn't protect the invention itself, but rather the way it looks. This may include shapes and contours, surface ornamentation, or pattern on the invention. [2] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- Generally, the design must be original, and it must be ornamental. An ornamental design is one that is for decoration only, and isn't required by the function of the invention.
- For example, if you've produced a unique set of steak knives, the design patent would not protect the configuration of the blade or the way the knife functions. Rather, it would protect your unique design on the handle, or the appearance of your knife block that holds the knives.
- The USPTO has a number of guides and resources on its website that will help you determine if your design qualifies for patent protection before you spend time and money on your application. You can start with the design patent guide at https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide .
- You may avoid costly delays if you perform a preliminary patent search to detect similar or related designs already patented. You should also research existing products, whether patented or not, as they may be used as a basis to reject your application.
- Patents and patent applications are a matter of public record. Go to http://appft.uspto.gov/netahtml/PTO/search-bool.html and search for other design patent applications in the USPTO's database. You can use them as examples of how your application is supposed to look.
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Complete the application data sheet. Your design patent should be accompanied by an application data sheet, which provides basic information about you, your design, and the underlying invention. [3] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- You can download the application data sheet from the USPTO website. Click on the "Patents" tab and then go to the "Patent forms" page.
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Follow the USPTO formatting guidelines. You don't want your application to be rejected because it fails to conform to USPTO specifications for patent applications. The USPTO doesn't have a specific form for you to complete. Rather, you must format your application yourself using the USPTO's formatting rules. [4] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
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Start with the preamble. The preamble includes your name, the title for the application, and a brief description of the nature and intended use of the object the design is attached to. The preamble is optional. However, if your patent is granted, all of this information will be included in the patent. [5] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- Your preamble shouldn't be more than 2 or 3 sentences. For example: "I, Sally Sunshine, have invented a new design for a jewelry box, as set forth in the following specification. This jewelry box is used to store jewelry and can sit on a shelf or table."
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Create your title. Your title should be specific, and clearly identify the underlying item or invention in commonly used terms. You shouldn't use any trademarked or marketing terms in your title. Keep it simple and basic. [6] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- A clear title will help your examiner conduct their search to ensure your design is original and doesn't infringe on any existing design patents and meets the "novelty" and "originality" requirements as compared to all existing products anywhere in the world.
- For example, if you've created a new design of jewelry box, your title would simply be "Jewelry Box."
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Include cross references to any related applications. If you've also filed a utility patent for the underlying invention, provide the application number and the date you filed the application. [7] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- If you included this information on your application data sheet, you aren't required to also include it in your application.
- You are not allowed to claim the benefit of an earlier filing date for a provisional patent application. 35 U.S.C. §172. [8] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
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Make a required statement regarding federally sponsored research or development. If you received any assistance from the federal government for the research and development of your design or the underlying invention, this must be disclosed. [9] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- When you research and develop something under a US government contract, the US government may retain some rights to the patent. This will be spelled out in the contract. The contract also will include the language that you should include in your patent application. [10] X Research source
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Make your claim. Unlike utility patents, which often have a large number of specific claims, a design patent has only one claim for the design embodied in the illustrations or photographs that accompany the design patent application. [11] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- This claim must use specific, formal wording. The basic wording is "The ornamental design for (the article which embodies the design or to which it is applied) as shown." These specific words must be used.
- For example, if you have created a new design for a jewelry box, your claim would read "The ornamental design for a jewelry box as shown."
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Describe the design and the illustrated views. In addition to the illustrations that must accompany your design patent application, you have the option of using words to describe the design. The illustrations are the most important part of your application, so only include a description if you feel it is necessary. [12] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- Use descriptions for elements of your design that can't be depicted in a drawing. For example, the design may be created using a particular metal or chemical compound.
- If you include a description, your claim should read "as described and shown" rather than simply "as shown."
- Provide a description of each view provided in your numbered drawings. Describe any parts that are illustrated as dashed lines and the intent of such dashed lines. [13] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
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Include a declaration or oath. Your patent application ends with a declaration that must comply with federal patent law and USPTO regulations. The oath identifies you by your full legal name as the inventor of the design for which you're seeking a patent. [14] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- You must include a statement that you believe you are the original inventor of the design, and that you have made the application for the patent.
- The USPTO has forms available for oaths and declarations that you can copy and use in your application. You can find these on the USPTO's website at https://www.uspto.gov/sites/default/files/aia_implementation/oath_declaration_examples.pdf .
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Part 2
Part 2 of 3:
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Decide whether to use photographs or drawings. Your drawings or illustrations are the most important part of any design patent. The drawing or photograph is the visual disclosure of your claim. Everything should be shown clearly, leaving no room for guessing. [15] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- You have the option of using either black-and-white photographs or drawings. Both types of visual depiction must follow specific formatting guidelines set forth in the USPTO rules and regulations.
- Whether you use photographs or drawings depends on how you think your design will be the most clearly depicted. Photographs may be better for simple designs, but for an ornate design, a drawing would allow you to show more detail.
- For design patents filed after May 13, 2015, you may also include color drawings or photographs if you believe they are necessary. You don't have to get permission beforehand. [16] X Research source
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Include multiple views of the design. In most cases, a single drawing or photograph will not be enough. You need to show all sides of the design, since it is embodied in a three-dimensional object. [17] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- At a minimum, you want to show the front, back, top, and bottom of the object. You may want to show other angles if there is a particular angle that shows particular dimensions of your design. For example, if you designed a new jewelry box, you might want to include corner angles if they show the way the front of the box is curved.
- If there are movable parts, you might also include drawings or photographs with those parts fully extended. For example, you might show the jewelry box with drawers open and with drawers closed.
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Use surface shading to show contours and dimensions. Surface shading turns a one-dimensional drawing into a three-dimensional image with perspective. You also should use surface shading to indicate curves, or to distinguish between solid and open areas. [18] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- Solid black shading typically is not allowed, unless you are differentiating between parts of the design that are themselves black and parts of the design that would include other colors.
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Depict anything not part of your design with broken lines. Since your design is embodied in an object, you may have to draw all or part of the object itself so the design makes sense. Broken lines indicate that the object itself is not what you're claiming. [19] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- A design patent only protects the design, not the object itself. Make it clear in your drawing what is part of the design and what isn't.
- For example, if you wanted to patent the design on the handles of steak knives, no part of the knife's blade would be part of your claim. If you needed to include the blade in your drawing, you would draw it with broken lines.
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Hire a professional design patent artist. If you aren't much of an artist yourself, and your design doesn't qualify to use photographs, you may want to hire a professional rather than attempting to draw it yourself. [20] X Research source
- Look for someone who has specific experience doing design illustrations for design patents. They'll understand the rules and requirements for design patent illustrations.
- Talk to an experienced patent attorney. They may have particular artists they recommend.
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Part 3
Part 3 of 3:
Filing Your Application
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Gather all required documents. The USPTO requires all the parts of your application, together with your data sheet, to be filed at the same time. If you're planning on filing your application electronically, you'll need to make sure you have digital copies of all of these pages. [21] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- You do have the option of filing a paper application. However, it will take longer for your application to be processed if you mail in a paper application.
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Consult a patent attorney . Design patent applications typically are simple enough that you can file one on your own without hiring a patent agent or a patent attorney. However, it's still a good idea to have an experienced patent attorney look over your application before you file it to make sure everything is in order and follows the correct rules and regulations. [22] X Research source
- Look for an attorney who has experience specifically with design patents, which are different from other types of patents.
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Use EFS-Web to file your application online. The quickest and easiest way to file your design patent application is to submit it online. The USPTO has an online application system you can use to file all parts of your application and pay the required fees. [23] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- There are tutorials and other resources on using the online system available at https://www.uspto.gov/patents-application-process/applying-online/efs-web-guidance-and-resources . Make sure you understand each step of the process before you get started filing your application.
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Pay the appropriate application filing fee, design search fee and design examination fee. Design patents are cheaper than utility patents. The total regular due at filing is $1020. If you are classified as a "small entity" (meaning you have fewer than 500 employees), you only have to pay $792. For "micro entities" the fee is reduced further to $204. [24] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- You qualify as a micro entity if you have fewer than 4 previous applications, or if you meet specific income requirements. If you have fewer than 4 previous applications and you qualify as a small entity, you likely qualify as a micro entity. [25] X Research source
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Work with your examiner to get your patent approved. Once your application is received, it will be assigned to a patent examiner who will review your claim and drawings and make the decision whether to issue your patent. [26] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- If your application is incomplete, or if the examiner has any questions, they will notify you in writing.
- When the examiner makes their decision, after all missing parts have been supplied, you will receive the results in writing. If the examiner has decided that your application does not meet the requirements to issue a patent, they will explain their reasons in an "office action". A typical design office action occurs over a year after the application file was deemed complete.
- You are required to respond to each and every basis for their rejection or objection within a predetermined time; otherwise your application will be deemed "abandoned."
- You may decide to correct certain objectionable issues with a limited amendment, and request reconsideration. Or you can appeal their final decision to another examiner. Consulting a skilled patent attorney may be necessary to help determine the best solution for complex rejections.
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Pay a fee for your patent to be issued. If the patent office decides to approve your application, you will receive a "Notice of Allowance" with a payment deadline. Your patent will be issued once you pay the appropriate fees. The regular issue fee is $740. Small entities pay $296, while micro entities pay $148. [27] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source
- Once your patent is issued, it's good for 15 years from the date your patent was granted. 35 U.S.C. §173. [28] X Trustworthy Source United States Patent and Trademark Office U.S. government agency responsible for registering and protecting patents and trademarks Go to source It cannot be renewed.
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Tips
- If you want to mail a paper application, download and complete the cover sheet, available at https://www.uspto.gov/sites/default/files/documents/aia0018.pdf . Mail your completed application and fees to Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313-1450. This address can also be found on the cover sheet.Thanks
- This article focuses on patent law in the US. If you live in another country, consult a patent attorney or contact the relevant government agency where you live.Thanks
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References
- ↑ http://www.ipwatchdog.com/2016/09/10/design-patents/id=72714/
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide
- ↑ https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september-16-2012
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#elements
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#elements
- ↑ https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html#d0e304490
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- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#elements
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#elements
- ↑ https://www.uspto.gov/patents/basics/apply/design-patent#figure
- ↑ https://www.uspto.gov/web/offices/pac/mpep/s602.html
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#drawings
- ↑ http://www.brinksgilson.com/streamlining-design-patent-applications-internationally
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#drawings
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#drawings
- ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#drawings
- ↑ http://www.ipwatchdog.com/2016/09/10/design-patents/id=72714/
- ↑ https://www.uspto.gov/patents-getting-started/patent-process-overview#step5
- ↑ http://www.ipwatchdog.com/2016/09/10/design-patents/id=72714/
- ↑ https://www.uspto.gov/patents-application-process/file-online
- ↑ https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule#Patent%20Fees
- ↑ http://www.bpmlegal.com/howsmall.html
- ↑ https://www.uspto.gov/patents-getting-started/patent-process-overview#step6
- ↑ https://www.uspto.gov/patents-getting-started/patent-process-overview#step4
- ↑ https://www.uspto.gov/web/offices/pac/mpep/s1505.html
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