Design Patent Application preserves the beautiful presentation of an article or product. This can add the product’s form, shape, and/or surface ornamentation. Design patents are restricted to the appearance of the product and do not cover basic or functional features or innovations. A design patent in the US has a term of 15 years from Patent Office issuance.
What is an international design patent?
The Hague System for the International Registration of Industrial Designs allows registering a design in countries that are a member of the Hague Agreement. Thereby, the candidate may get design protection in one or several countries. An international design patent produces the same results in each of the designated countries as if the design had been registered right at every national office unless protection is ignored by the national office of that country.
An international design patent application must be filed immediately at the WIPO in English or French.
Protection of an international design can be achieved only in those countries which have agreed to the Hague Agreement. Currently, there are about 40 member states of the Hague Agreement (for parts see the WIPO website). On the filing of an international design patent, one or more countries, in that design protection shall become active, have to be selected. If the application is allowed, the application is registered and published.
International design registration is originally valid for 5 years. Consequently, the international registration can be renewed for the next 5 years for all designated states. Any further increase depends on the national law of each designated State. In Germany, the protection can be renewed up to a sum of 25 years.
Elements of a Design Patent Application
The elements of a design patent application must enter the following:
(1) Preamble, saying the name of the applicant, title of the design, and a brief explanation of nature and proposed use of the article in that the design is completed
(2) Cross-reference to similar applications (unless included in the application datasheet).
(3) Statement about federally sponsored research or development.
(4) Description of the figure of the drawing
(5) Feature description
(6) A single claim
(7) Drawings or photographs
(8) Executed oath or declaration
What can be registered as an design patent?
Any two-dimensional or three-dimensional image of a product, or a part of it, can be protected. A product can be any technical or handicraft item, including packaging, equipment, graphic symbols, and typographic characters and items that can be grouped into a complex product. A computer program is not viewed as a product. The design of a product must not be based on the industrial function or the purpose of the use of a product. That is the designs that are supposed to be managed only by the technical function of a product cannot be preserved.
A design can only be preserved when the design is new and has specific character.
A design shall be deemed to be new if no same design has been made accessible to the public. Please see that you own a publication of the design up to 12 months before the filing date of the design application will not be counted in assessing novelty (grace period) so that the design is different despite the own publication.
The design has a different character if the overall impact it plays on the informed user varies from the overall impression produced on such a user by any design that has been made available to the public. The overall impression only requires to be somewhat different from that of any existing design. A special creative act shall not be needed.
The scope of the protection given by a design patent must include any design that does not produce on the informed user a distinctive overall impression.
Benefits of a design patent
- Design patents can be a much faster way to get patent protection. Examination in the United States typically takes place within a year, indifference to the two to three years (or more) of waiting for the first action in a utility patent application
- If an expedited design patent application is correctly filled, the examination will most likely take place within a few months, and issuance of a design patent will normally occur within 6 months.
- Design patents give many advantages as opposed to utility patents. Design patents are usually less expensive and have no maintenance fees if the design issues as a patent. The allowance rate is significantly more important for design applications and design patents can usually be achieved much quicker than utility patents.
- Importantly, design patents give the same marketing benefits as utility applications. Once a design application is on the register, the product can be identified as “patent pending’ once a design patent has issued, the marking can be converted to “patented.”
- Design patents can be a very good means of preventing or stopping knockoffs. They can also be used to stop the importation of infringing products. On the other hand, design patents offer restricted protection as compared to utility patents since design patents cannot defend against third party copying of a functional or structural innovation except the innovation involves a configuration or shape that was also copied.
- Design patent applications previously have a higher allowance rate than utility patent applications.
- If the design is essential for the sale of the product, then the design patent works optimally. For example, design patents are excellent for outside replacement parts where owners require the outside to look like the original (e.g., vehicle replacement parts).
In case you publish your design for the first time in an EU country (for example by marketing, sales, or at an exhibition), you get automatic protection for 3 years throughout the EU for what is identified as an unregistered design. This only gives protection upon deliberate copying. To implement the right of an unregistered design, you must explain in a lawsuit that you have such a right to the design. If the other party can show that they were not aware of this right, you will not be able to stop them from copying the design commercially.
How to Apply for a Design Patent
Your design patent application must add:
- An introduction with a brief description of the nature and use of the article in that a design is completed
- Cross-reference to other similar applications
- A statement regarding federally sponsored research
- A description of the figures of the drawing
- Description of the features
- A single claim
- Drawings or photographs
- An executed declaration.
There is no maintenance charge, but there is a filing charge, a search charge, and an examination charge. If you are an independent inventor or a small entity, the charges are divided.
While legal representation is not needed, those who are not skilled in applying for patents may not be able to get a patent that sufficiently protects a singular design. The most crucial element of the design patent application is a drawing disclosure. The drawing disclosure shows the design with either a drawing or a black and white photograph of the claimed design.
In a utility application, the claim is a written description, but in a design patent application, the design is represented by drawings or photographs that correspond to the USPTO rules. An incorrect or poorly made drawing can result in a defective application, and you may not be able to get a patent.
The disclosure is expected to be free, complete, and available of speculation. Drawings must be black ink on white paper or black and white photographs that match requirements. In some cases, color drawings or photographs will be allowed after a petition is allowed. And the applicant explains why they are important. If color photographs are submitted, but the color is not part of the claimed design, you will require to add a disclaimer.
The photographs and drawings cannot be mixed in the formal submission because of the potential of difference. They must include enough views, including front, rear, right and left sides, and top and bottom, to disclose the appearance of the design. They must also show surface shading that shows contours, and open solid areas of the design.
A structure that is not part of a required design but is important for showing the environment in that the design is used can be described with broken lines in a drawing.
Difference Between Industrial Design and Design Patent
In the legal sense, an industrial design is a design that establishes the ornamental or the aesthetic aspect of an article. An industrial design may consist both of three-dimensional features, such as the shape of an item, or its two-dimensional features such as its patterns, lines or color.
Though, a design patent serves to protect only the ornamental appearance of an article, and not its structure or its useful features. If a design, But, is utilitarian in nature and ornamental (such as an ergonomic computer mouse design that helps to make the mouse easier to use, then it can be filed as a design patent.
The owner of a registered industrial design has the power to prevent third parties from making, selling or importing the items that show or include a design that is a copy of the protected design, when such acts are undertaken for the commercial objectives.
The design patents support to give meaningful protection to a product’s design as to when the design was developed to build an ornamental look to a product.
Varieties of products that are benefitted from its protection: –
Industrial designs are connected to a wide variety of products that relate to the industry and handicraft items: from packages and the containers needed for furnishing and household goods, from lighting accessories to jewelry, and from electronic gadgets to the textiles. These may also be related to the graphic symbols, the graphical user interfaces (GUI), and the logos.
Whereas the products that are served from the protection of design patents are paintings, songs, books, and sculptures?
How are these protected?
To preserve the industrial design in most countries, an industrial design requires to be registered to be protected under the industrial design law as a “registered design”. Also in a few countries, Industrial design laws give them protection without registration, and the industrial design in that the time- and scope have limited protection is named “unregistered industrial designs”.
However, if you want to preserve your design patent, you must file a patent application. The terms of the design patents are short and they follow a predefined form. Only one claim can be allowed, and that appropriate design patent must follow a specific form. Though, if the application is allowable, the Patent and the Trademark Office will send a notice of allowance to the applicant’s patent attorney. Also, no support fees are required to maintain a design patent that is in force. The design patent still only has 14 years of validity from the date of issuance.
A design application will have to be registered within 6 months from the first filing in any country or the first public disclosure of the product, after this time frame the patent office will examine that the current new application is not novel.
However, in general, a design application method is fast and expedite, if everything moves easily and, depending on the jurisdiction, a candidate can have a design granted within 6 months from the filing date.
Design factors are playing an ever-increasing role in the marketplace. Design patents can perform an important role in protecting design innovations and assist reduce competition, whether they are the only available intellectual property protection or are part of an overall legal policy.
At Trademarkcart, our expert intellectual property team is here to help you preserve your patent at a national, European, and international level according to the scope of your brand. Our personalized consultation help will lead you into the process step by step, assuring your design patent registration and protection are carried out with both security and comfort.
Even you can ring us at the number: +1-3024672224 or mail us on firstname.lastname@example.org