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Elements of a Design Patent Application

Design patents protect the design or unique appearance of a manufactured object. A design is the surface ornamentation of an object, which can't be separated from that object. The design can also be related to the shape or configuration of an object, like the hole design on a pair of Crocs clog shoes. A design patent is available to those who invent a new and non-obvious ornamental design for an object.

While the object and its design are inseparable, the design patent only protects the appearance of the object. Its functional or structural features will not be protected by a design patent. To protect an invention's structural or functional features, you must file a utility patent application.

This article focuses on design patents and, more specifically, the elements of a design patent.

Filing a Design Patent Application

To receive patent protection, an inventor has to file an application with the United States Patent and Trademark Office (USPTO). A person can file a provisional patent application to protect their invention while figuring out the specifics of the invention. People do this when thinking about whether to patent the invention.

A non-provisional application starts the official examination process to determine if the particular invention is eligible for patent protection.

Generally, a non-provisional patent application includes:

  • The description and claims of the invention
  • Patent drawings, if necessary
  • A declaration or oath
  • Various fees

The information you will need to provide for a patent application varies according to what type of patent you are seeking. When you are seeking a design patent, you need to include the following:

Preamble

The preamble states:

  • Inventor's name or applicant's name, either as a business or an individual
  • A title for the design
  • A brief description of the intended patent

The description outlines the intended use and nature of the object that the design is a part of. Consider this as the summary of your design patent.

An example of a preamble would be:

  • Summers & Jennings, Inc.
  • “TV Dinner Trays with Adjustable Legs"
  • Flat surface table tray for placing items on that has adjustable legs to rest on a chair

Cross-Reference

The cross-reference provides a reference to any other applications related to the design patent application. Types of cross-references include:

  • A priority claim to a previously filed application, such as a foreign application. Priority claims establish the filing date for the design applications.
  • Related design applications
  • A family of design applications, including variations of a similar design
  • Co-patent pending design applications

Federally Sponsored Research or Development

You must make a statement regarding any federally sponsored research or development for the design.

The Figure Descriptions

Description of the figure(s) explain what each view of the drawings represents. A brief description can also be included to highlight features of your design that are not clear from the photographs or drawings provided.

A Single Claim

A single claim defines the subject matter that the applicant deems as a design. Describes the ornamental design of the article of manufacture.

Drawings or Photographs

The most important aspect of a design patent application is the drawing or photograph of the design for the person seeking patent protection. All drawings or photographs included with the application must be of the highest quality. The drawings or photographs should conform to all the rules and standards required by the USPTO. These drawings and photographs should distinguish the design from prior art, which is any publicly available design that may seem similar to your design.

Executed Oath or Declaration

A declaration or oath by the inventor affirming that they are the original and first inventor of the claimed design.

Entity Status

Patent applicants can mention their entity status. If the applicant is a small entity or micro entity, they will have reduced fees associated with the application process.

Fees

In addition to the application, you will also need to pay a filing fee, patent search fee, and examination fee to the USPTO. The USPTO will request an issue fee once the patent examiner has examined and approved the application. The applicant must pay the issue fee to the USPTO. Unlike other patents, design patents do not require maintenance fees.

Design patents enjoy patent protection for 15 years from the date of the grant. Any design applications filed before May 13, 2015, have 14 years of protection.

Need Legal Advice About the Patent Application Process?

If you are a small business, entrepreneur, or startup company looking to file a patent application, you should get an intellectual property attorney. While legal representation is not required for filing a design patent application, knowing patent law and the practices and procedures of the USPTO helps secure patent protection for your invention.

An experienced patent attorney can make sure that you provide all the required elements for a design patent application and file your patent application so that you receive full protection for your invention.

For more information and resources related to patent rights and other types of intellectual property, you can visit FindLaw's section on Intellectual Property.

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