Patenting A Design

A design is a visual ornamental characteristics embodied in, or applied to, an article of manufacture. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture. The United States Patent and Trademark Office (USPTO or Office) examines applications and grants design patents on inventions when applicants are entitled to them. The patent law grants design patent to any person who has invented any new, original, and ornamental design for an article of manufacture. A design patent protects only the appearance of the article and not structural or utilitarian features.

Types of Designs and Modified Forms

An ornamental design may include the entire article or only a portion of an article or maybe ornamentation applied to an article. A design patent application may only have a single claim. Designs that are independent and distinct must be filed in separate design patent applications since they cannot be supported by a single claim. Designs are independent if there is no apparent relationship between two or more articles. Designs are considered distinct if they have different shapes and appearances even though they are related articles. However, modified forms or embodiment of a single design concept may be filed in one design patent application.

The Difference Between Design and Utility Patents

A utility patent protects the way an article is used and works while a design patent protects the way an article looks. Both utility and design patents may be obtained on an article if invention resides both in its utility and ornamental appearance. While utility and design patent afford legally separate protection, the utility and ornamental of an article are not easily separable. Articles of manufacture may possess both functional and ornamental characteristics.

Elements of a Design Patent Application

The elements of a design patent application should include the following:

(1) Preamble, stating the name of the applicant, title of the design, and a brief description of the nature and intended use of the article in which the design is embodied;

(2) Cross-reference to related applications (unless included in the application datasheet).

(3) Statement regarding federally sponsored research or development.

(4) Description of the figure(s) of the drawing;

(5) Feature description;

(6) A single claim;

(7) Drawings or photographs;

(8) Executed oath or declaration.

In addition, the filing fee, search fee, and examination fee are also required. If the design patent applicant is a small entity like an independent inventor, a small business concern, or a non-profit organization, these fees are reduced by half.

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