A design patent protects the way a product looks and its surface designs. However, a design patent doesn’t protect the working procedure or the mechanical structure of a product. A business or any firm may protect their IP (intellectual property) rights over an original design through a patent application. They must do it before entering the market in order to prevent any competitor from seeking an unwanted advantage through copying the design.
You earn the right to exclude others from misusing your design personally and commercially if you get a patent for your design. This patent is capable of protecting designs of various products; from jewelry to packaging.
Eligibility of Design Patent:
You must choose a useful design to make it eligible for patent protection. You cannot copyright a method of creating art, photographic technique, etc. Also, you must choose a repeatable design to make it qualify for patent protection.
Moreover, the USPTO (United States Patent and Trademark Office) issues design patents based on the ornamentation of the working object. The object design must not affect the working of the invention.
You must consider the following points in order to check if the patentability of the design:
- The surface of the item must own unique ornamentation.
- The invention must not resemble any prior art.
- The office does not accept derivation from other designs.
- Visibility at the time of intended use.
Also, Digital design patents deal with icons, screen layouts and icons for applications and software programs. However, these patents protect the designs just at the time of the screen display.
Filing a Design Patent:
Filing a patent for your design is the most crucial and difficult task. There are so many things that you must keep in mind while filing in order to gain the patent for your design easily. Some of the points that you must consider at the time of drawing disclosure are:
- It does not take much time to apply for a design patent if you have already searched for prior art and found a lawyer for drafting the application. Thus, do proper research and always seek a professional.
- USPTO asks views in the form of drawings from all the angles of the object. The only exception occurs when a few of the sides are similar.
- The drawings must include surface shading to show the contours of the object.
- You must use non-continuous lines to depict the parts of the drawing that are not applicable to the patent.
- Use broken lines to show the space around the design and define the boundary of the design.
- The patent drawings are the most important part of any patent application. Thus, you must consider hiring a professional for high-quality drawings.
- Pay special attention to the claims and description part. Provide an adequate title.
- Try to use figure descriptions. They go along with the drawings and describe the viewers what they see in the drawings.
- You may even include a Preamble. It is a statement that states that you own the submitted product. Also, add a phrase or sentence for a brief description of the intention behind the product.
- Mention the cross-references or any federal research, if used.
The Federal Court uses an ordinary observer test to determine infringement of the designs. The Supreme Court developed the test in 1872.
The jury determines the existence of the infringement by just looking at the product and comparing it to the original patented design. Infringement is likely at the time of potential market confusion. The consumer may miss very specific details and differences between the original and the copied product. This causes misleading. Thus, we need expert testimony for easy distinction.
In a recent situation, Apple successfully defended its patents and got more than $900 million when the court clarified that Samsung copied the iPhone design.
The lifespan for a design patent is for 15 years if you file them after May 13, 2015. However, their lifespan reduces to 14 years if you file them before May 13, 2015. The consideration of time is from the date of patent grant.
You may renew an expired patent as long as no one claims your design. This requires you to pay the renewal fees.
Common application errors:
The applicants or patent seekers sometimes make very common mistakes when they apply for a patent. This reduces the chances of a Patent grant. Some of the mistakes that are avoidable are:
It is just waste money if you try to apply for a design patent when there is a preexisting owner of the IP rights to the design. You must perform a thorough search on the field and history related to your design in order to escape troubles.
Omitting the working of product from claims:
You may file a utility patent if your product is unique in both working and design. You may file a provisional utility patent that represents you as “patent pending” and describes the product until you file a complete utility patent.
The patents on designs totally depend on drawings. The USPTO might turn down your application if you submit incomplete or less detailed drawings.
A lawyer might help you in filing a patent for your design. You must go for the lawyer that has a good experience with IP to save your time, money and efforts.
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