What is a Design Patent?
Under the United States patent system, there are utility, design and plant patents. A design patent is different from a utility patent in that “a utility patent protects the way an article is used and works, while a design patent protects the way an article looks.” In a more legal term, a design patent is said to protect the “ornamental appearance” of an article. It can be the shape or configuration of an article, or it can be a surface ornamentation of an article, or it can be both. Because a utility patent focuses on the use and a design patent focuses on the ornamentation, an article may be entitled to both a utility and a design patent at the same time.
Elements of a Design Patent Application
So what do you need to prepare to apply for a design patent? The U.S. Patent and Trademark Office (USPTO) provides a very good application guideline. According to this guideline, you should include the following in your design patent application:
- Cross-reference to related applications (unless included in the application data sheet);
- Statement regarding federally sponsored research or development, if any;
- Description of the figure(s) of the drawing;
- Feature description (optional);
- A single claim;
- Drawings or photographs; and
- Executed oath or declaration.
Let’s take a look at some of these elements in more detail.
The Preamble, if included, should state (a) the name of the applicant, (b) the title of the design, and (c) a brief description of the nature and intended use of the article in which the design is embodied.
The Title of the design “must identify the article in which the design is embodied by the name generally known and used by the public.” Marketing designations such as brand names cannot be included in the title. For example, “Chair” could be a good title if the design
The Description of the Figure(s) of the Drawing
The description of the figures is usually very formal and simple. It shows what each view of the drawings represents, i.e., front elevation, top plan, perspective view, etc. For example, “FIG. 1 is a perspective view of my chair design” suffices, and usually any description more than this is not desirable, albeit not prohibited. The idea behind is that “the drawing is the design’s best description.”
Sometimes, however, a specific view of drawings may be redundant and not included in the drawings. In this case, additional description such as the following may be included: “The right side elevational view is a mirror image of the left side.”
Or, sometimes a portion of the drawings form no part of the claimed design but is nevertheless included, only to help understand the environmental structure in the drawings. In this case, additional description such as the following may be included: “the broken lines form no part of the claimed design.”
A Single Claim
Unlike utility patent claims full of nuanced jargon, a single claim in a design patent is incredibly simple: “The ornamental design for [an article] as shown.” Alternatively, when there is a special description in the specification, or modified forms of the design have been shown, or other descriptive matter has been included in the specification, the claim becomes just two words longer: “The ornamental design for [an article] as shown and described.”
Drawings or Photographs
Every design patent application must include either a drawing or a black and white photograph of the claimed design. Like utility patents, the same disclosure requirements under 35 U.S.C. 112, first paragraph, apply. This means that the design drawing or photograph “must include a sufficient number of views to constitute a complete disclosure of the appearance of the design claimed.” Therefore, usually multiple views of an article should be presented.
As mentioned above, redundant views or mirror images of another view may be omitted from the drawing if the specification makes this explicitly clear.
Optionally, an application may include color drawings, but only after filing a petition with the USPTO explaining why the color drawings or photographs are necessary and the granting of the petition by the USPTO.
Finally, drawings in design patents and those in utility patents are sometimes very different. Various types of lines, including solid lines and broken lines, are used differently in design patent applications than in utility patent applications. There are different rules about surface shading for design patent applications, which might further complicate writing design patent applications. In that case, you may want to seek help of a professional, such as a patent attorney at Bold Patents.