Design patents can be a useful and valuable tool when seeking to protect a new and original ornamental design. This is part one of a two-part series that will delve into the basics to help you in understanding design patents. In this first part, we will focus on what a design patent is, what role they play in the overall universe of patents in the US, and how the patents work in terms of length and maintenance.
What Are They and What Do They Protect?
Understanding design patents starts with knowing what, exactly, they protect. Unlike utility patents, which protect new and useful products or processes, machines, or material formulas, design patents do not protect the functional design elements. Instead, design patents can be used to protect things like furniture, user interfaces, clothing, jewelry, the design of commercial storefronts (like the Apple stores), and even designs of packaging, such as the Coca-Cola® bottle.
Design Patents: A Growing Trend
Design patents represent just over 10% of patents granted by the United States Patent and Trademark Office each year – just over 30,000 annually. However, there has been a steady increase in the number of design patents both applied for and granted over the past several decades.
For example, in 1970, just over 3,000 design patents were granted by the USPTO, representing less than 5% of all patents granted. In 1990, the USPTO granted just over 8,000 design patents, representing approximately 10% of all patents granted that year.
After a large jury verdict pertaining to the design patent infringement case between Samsung Electronics Co. and Apple Inc., as well as a modification to the design patent infringement standard in 2008, it is likely that the USPTO will continue to receive an increasing number of design patent applications in the years to come.
Understanding Design Patents: Term and Maintenance
Currently, a design patent remains “active” for 15 years from the date in which it is issued. The term of a design patent is governed by 35 USC § 173 (2012), which states, “Patents for designs shall be granted for the term of 15 years from the date of grant.”
However, it is important to note that design patents whose applications were filed before May 13, 2015 will remain active for 14 years from the date the patent was granted. Additionally, unlike utility patents, design patents do not require the remittance of any maintenance fees throughout the term of the patent.
Those are the basics of what design patents are and how they work. In the second part of this series next week, we are going to dive into the specifics of design patent infringement and what you need to do to prove your claim.
Marks Gray is dedicated to helping entrepreneurs, inventors, and enterprises protect and safeguard their intellectual property. We have years of experience and are well equipped to assist you with your design patent matters.