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Should You Consider a Design Patent?

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Ticker Torpedo Design Patent

Design patents can give designers broad protection over their creations not available by other means.   On the downside, design patents are not always easy to get and can often cost a few thousand dollars.  But, depending on the product and potential size of the market, it may be well worth the effort. So what do you get with a design patent? Rich Stim, who writes Nolo’s excellent Intellectual Property Law Blog explains it this way.

You can do two things with a design patent: 

Stop others who create substantially similar designs. For 14 years from the date your design patent is granted, you can stop anyone from making, using or selling your design or a substantially similar design on similar goods. In order to stop an infringer, you must file a lawsuit in federal court. You’ll have to show the court that an ordinary observer would be deceived into thinking that your item and the infringing item are the same. A design patent is interpreted through patent drawings that you file as part of your design patent application. These drawings define your rights and show the USPTO how the world will see your unique design. The design patent only protects what is disclosed in the drawings, so if you later change the design substantially, you can’t protect it unless you apply for a new patent.

License, sell or otherwise exploit your design. Besides chasing infringers, you can earn money by exploiting your design—for example another company might pay you to license your design for a salt and pepper shaker. In this case, you would retain the patent and the company would acquire a limited right to use the design and would pay out periodic royalties. You can also sell all rights (“assign”) to the patent to a company in return for a lump sum or royalties.

If you want that protection, there are certain criteria that must be met.  One of the most important criteria is that the design must be new, and non-obvious by someone in the field.  There is no hard line for that rule but if you are trying to patent your design for a 5-legged stool, it probably won’t survive.  Not that design patents are for ornamental designs, not functional.  If function is the feature, then the product will need a utility patent, the kind most consumers traditionally think about when hearing the word; patent.  You can have both, however. Also, to receive a design patent, your application must be submitted one year from its publication or first offer for sale.  This is a topic that will be explored in a future article but for now, lets keep it simple; don’t give your design out for anyone to use or try to sell it in any way unless you plan on going for your design patent within a year.

One you submit the application, you can put patent pending on your product.  Patents take time to move through the system, sometimes years, so patent pending alerts the world to the fact that you have applied.  That should deter those that want to copy it and maybe even help in sales negotiation since retailer will feel comfortable that there wont be other copies out there.  That can be a potent marketing advantage even if you find your application was denied.  You may still have had a couple of years to solidify your market, at the cost of only a few thousand dollars.

In Part 2, I’ll set up a hypothetical scenario that may help you decide whether getting a design patent is the right thing for your company

If you have any questions regarding design patents or any other intellectual property matter, just send me an email at steve@strategyIPlaw.com.  If you find this article interesting, please share it with your friends by clicking the Share button on the left and help us build our audience. 

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About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at steve@orangenius.com. His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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