Common Questions About Design Patents
What is a design
patent? How does it differ from a regular patent?
Design patents are used to protect the stylistic, ornamental aspect of
a product design. "Regular" or utility patents, on the other hand, may
be said to protect improvements in how a product operates or how it is
constructed.
When may a product
be design patented?
A design patent, according to the patent statute, is available for any
novel, ornamental and nonobvious product design. A product design is
considered "novel" under the statute if it or an identical design has
not been offered for sale or described in a printed publication more
than one year before a design patent application is filed. Any product
design having an appearance which is not solely dictated by the
function of the product may be considered "ornamental." (By this
standard, almost any product design is "ornamental.") Examples of
products that have recently passed the ornamentality test include
sneaker treads, faucet handles and grappling hooks. A design is
considered to be nonobvious when "a competent designer having full
knowledge of prior designs would have found it so."
How is a design
patent obtained?
By filing an application in the Patent Office, much in the manner of
the more common utility patent. A design patent is mostly drawings,
which must be carefully selected and edited by an experienced patent
attorney to maximize the potential scope of protection.
How expensive is
design patent protection?
The cost of preparing and filing a design patent application will vary
according to subject matter, but rarely exceeds a few thousand dollars.
A design patent application is, in general, much less expensive to
prepare than a utility patent application. In addition, no
post-issuance fees apply to design patents as they do utility patents.
How long does it
take the Patent Office to decide a design patent application?
Several months after the application is filed, a process of negotiation
between the attorney and a design patent examiner begins, which will
usually (but not always) culminate in the grant of a design patent. It
usually takes about two years for a design patent to issue, although
expedited processing may be requested.
What rights does a
design patent, once granted, give its owner?
A design patent confers a right upon its owner to exclude others from
making, using or selling products having the patented design for a 14
year period. In contrast to copyright protection, a competitor can not
escape infringement of a design patent by claiming that it's design was
independently created.
How does a court
determine whether a competitor's product infringes a design patent?
A court must find infringement when it deems that an ordinary
prospective purchaser of such products,. paying the level of attention
that would be expected of such a purchaser, would confuse the product
with the patented design.
How expensive is
design patent litigation?
Costs will vary according to the particular fact situation. Design
patent litigation tends to be much less expensive than litigating a
utility patent, mainly because there are usually fewer issues to
address during pretrial discovery. Not uncommonly, a design patent
owner can prevail early in the proceedings through a motion for summary
judgment, without the expense of a full trial.
What penalties are
there for infringing a design patent?
A design patent owner can recover up to three times the actual damages
it suffers as a result of the infringement, as well as a court order
prohibiting future infringement. Alternatively, the infringer may be
forced to pay its total profits as a result of the infringement to the
patent owner In exceptional cases, a court may also order the
infringing competitor to pay the design patent owner's attorneys fees
and costs. Alternatively, the owner of the infringed design patent may
recover the infringers total profits in lieu of actual damages.
Contact us for more
information on our industrial design protection services.
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