While regular patent applications protect the utility of an invention, design applications protect an ornamental design of a functional item. That is, a design patent covers the nonfunctional design of an object having practical utility. An object with a design that is substantially similar to the design claimed in a design patent cannot be made, used, copied or imported into the United States. The copy does not have to be exact for the patent to be infringed, it only has to be substantially similar. For example, design patents can cover ornamental designs of jewelry, furniture, beverage containers and computer icons. Design patents can be invalidated if the design has practical utility (e.g. the shape of a gear).

Frequently Asked Questions

1. What is the difference between design patents and utility patents?

In general terms, a “utility patent” protects the way an article is used and works (35 U.S.C. 101), while a “design patent” protects the way an article looks (35 U.S.C. 171). Both design and utility patents may be obtained on an article if invention resides both in its utility and ornamental appearance. While utility and design patents afford legally separate protection, the utility and ornamentality of an article are not easily separable. Articles of manufacture may possess both functional and ornamental characteristics.

2. How long does a design patent last?

The term of a design patent is 15 years, measured from the date the patent is granted. This is in contrast to a utility patent term, which typically lasts 20 years and is measured from the application priority filing date. U.S. Design patents are not renewable and require no maintenance or annuity fees.

3. Can I file both a design patent application and a utility patent application on the same invention?

Yes. Your invention may include functional aspects protectable through a utility patent application and ornamental aspects protectable through a design patent application. While legally functional and aesthetic aspects are separate and distinct inventions, it is fair to say that, in general, an invention can be covered by both utility and design patents.

4. Why should I apply for a design patent?

Design patents can be very effective tools for protecting products having innovative appearances, by preventing your competitors from copying the appearance of your products. A design patent owner has the right to exclude others from making, using, importing, selling or offering to sell without permission what is protected by the design patent – the unique ornamental design. A patent holder’s rights include the right to file an infringement suit in federal court and to stop the manufacture, import, sale, and use of the infringing goods in the U.S.

Once you file a design patent application, you may legally label your design “patent pending” for the period that your application is awaiting approval to deter potential infringers.




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