Design patents provide valuable coverage to a design. To obtain a design patent, an inventor must prepare and file a patent application at the patent office. A professional should prepare a design application for a patent. The patent office has many requirements that must be fulfilled before they will grant you a patent.
Even small errors in your application for a design patent can lead to costly repairs down the line. It’s crucial to do it right the first time.
In this article, we’ll look at the time and cost advantages of obtaining design patents and discuss the enforceability of design patents. You might be surprised to learn that they can be more expensive than you think! Still, they’re worth considering if your designs are unique. Read on to learn why. In the end, it’s all about whether or not your product design is truly unique.
Value of a design patent
Design patents are much easier to obtain than utility patents. A utility patent can take up to three years from filing to issue. However, a design patent takes less than a year. Design patents are cheaper because they don’t have to be subjected to as much scrutiny by USPTO examiners in the examination phase. They also have no maintenance fees once issued. They are therefore much cheaper to obtain and maintain that utility patents.
Marketing-wise, just like utility patents, design licenses allow their owners to market and promote covered items with the “patent pending” designation. This immediately gives the item a marketing advantage over the competition. The emergence of online platforms like Amazon, Ebay, and Facebook is another factor that has led to increasing recognition of the importance of design patents.
The 2008 law change by the Federal Circuit court, which has plenary authority over all patent appeals in US, changed the standard for proving design patent infringement. Instead of a two-step process that focused on the point of novelty of the design patent, it now uses a simple one-step standard that is based on substantial similarity. This change made it easier for infringement to be proven, which in turn contributed to the increased value of design patents.
Injunctions, monetary damages and possible attorneys’ fees are all available remedies for design patent infringement, just as with utility patents. Additional damages are available for design patents but not utility patents. It is the total profit of the accused product.
Design patent applications, like utility patents application, are subject to U.S. Patent and Trademark Office examination (USPTO). This examines the applications against the three main criteria of utility, novelty, and non-obviousness. Design patents are not like utility patents. Instead, they include drawings and a written description. Design patent applications must include sufficient views from various angles to cover the inventive design.
Internationally, U.S. patent applicants can extend the reach of their patents by filing for international protection. This may be done by either filing a single international application under the Hague System for the International Registration of Industrial Designs, which currently has more than 90 member countries. Any foreign filing must be made within six months from any previous U.S. date to receive the U.S. filing benefit. To maintain patent protection eligibility, all applications must be filed in the U.S. and abroad before the public disclosure of the inventive design or commercial use.
While utility patents can play a huge role in a company’s success, a design patent can provide a different kind of competitive advantage. The design of a product can make or break its acceptance in the market. For example, Apple argued in court in the Samsung v. Apple case that the iPhone’s design contributed to its success. The case against Samsung led to the award of hundreds of millions of dollars for Apple.
Image Credit: Unsplash
The Value of Design Patents for Medical Device Companies
Design patents are important to medical device companies because they allow them to expand the protection of their product, including its packaging. A design patent covers the entire design of a device, and can be used to reduce any accentuated differences not covered by another patent.
Design patents are a great way to protect certain products due to the highly competitive market for medical devices. Some medical devices have design features that attract consumer loyalty and attention. They may also be used to protect single-use, replaceable components. Patents for medical device design also protect products’ aesthetic appeal. Although the medical industry is often seen as utilitarian, medical devices can be ornamental or industrially designed.
When developing patent strategies for medical device inventors, it is important to take into account the commercial context. There are many competitors who constantly check each other’s IP, and also explore design-around products. Medical device companies can distinguish themselves by obtaining a design patent.
A company might design a handle for a surgical instrument to increase comfort and ease-of-use. This patent protects the design of the surgical instrument and stops other companies from creating a similar look.This is an example of how design patents can benefit medical device companies. A medical device manufacturer can also incorporate digital features into its hardware. This includes icons, buttons and a user-friendly interface. It is a smart idea to seek design patents whenever you can, especially for products with aesthetic appeal. Additionally, design patents also have the advantage of protecting non-tangible aspects of orthopaedic devices. These could include the design of an implant.
Although design patents are more valuable than generic patents in general, a solid patent strategy can enable a medical device company become the sole supplier to an end-user. A design patent protects a device that is intended to improve the patient’s lives and allows the company to become the only supplier of that device.
Time and cost advantages of a design patent
Although most companies know the importance of utility patents, not many realize that design patents are an important part of their IP portfolio. Design patents can be used to prevent knockoffs, obtain patents protection faster and save money. Below we discuss the advantages:
1. Quicker Processing Time
A design patent is a more expedient method for protecting your original design from imitators. Over half of design patent applications are granted within one year. Meanwhile, utility cases take anywhere from three to six years to resolve. Additionally, a design patent requires only a $900 expedited examination fee and can be approved in as little as 2.2 months. Applicants should also be aware that there are some limitations with design patents. While design patents protect the appearance of something, they do not protect its function.
A design patent requires fewer drawings than a utility or plant patent. An attorney will spend significantly less time on preparing a design patent application than a utility patent application. Official fees at the US Patent and Trademark Office for design patents are generally 40% lower than utility patents. In addition, the process is streamlined, allowing applicants to focus on the visuals of their products, reducing the lead time to filling the application. As long as there are no major changes in the design, the process can be repeated as often as necessary.
2. Prevents Knock-Offs
A design patent also protects you against knockoffs. Many products sold online are imitated by other manufacturers. In some cases, these products are even shopped from online stores by knockoff artists. These artists may want to sell an item that looks similar to yours but without the original design. Customers may not know the difference between a real product and one created by an imitator. In such cases, a design patent is a better option for protecting your product.
A design patent is an important part of a product’s development. Patenting a design is easier than filing a utility patent because there is no need to include the functional aspects of your product. Design patents tend to issue much faster than utility patents, which means less money and faster protection for your product. If you’re starting a new business, a design patent might be the way to go.
3. Less Expensive
When compared to utility patents, a design patent costs around half as much. However, the cost of a design patent may increase significantly if the complexity and challenges are more significant. But despite the cost and complexity of a design patent, the average allowance rate for a design patent is approximately 85 percent. A design patent typically receives its first action within a year, compared to only 50 percent for utility patents.
4. No Maintenance fee
Design patent preparation can be relatively inexpensive and may cost only a few hundred to several thousand dollars. The cost is typically lower than a utility patent, which is only issued for an actual useful invention. The preparation of a design patent can save you hundreds to thousands of dollars and ease your uncertainties. And, as a bonus, design patents require no maintenance fees or publication fees. When you consider the benefits of owning a design patent, consider all the costs involved before choosing a patent attorney.
5. protection is different from that of utility patent
A design patent covers the entire design of an invention, but not individual parts or sub-combinations. Because of the doctrine of segregable parts, a design patent covers a whole design, not a portion of it. Sub-combinations and combination/sub-combination subject matter must be protected by separate patents. Therefore, the patent claims of a design application must be separate from the claims for other patents that cover the same subject matter.
Image Credit: Unsplash
Enforcing a design patent
Design patents are a powerful form of intellectual property. The United States has a strong design patent law, and enforcement efforts are increasing in every industry. In addition to functional devices, design protection is also expanding to encompass icons and GUIs. While this area is still developing, there are currently several important factors that will likely influence the enforceability of a design patent. Listed below are some of the most important factors to consider.
The United States Patent and Trademark Office is the relevant authority for design patents. Title 35 of the United States Code governs design patents. It includes sections 171 et seq. This section provides guidance on design patent enforcement and the scope of claim scope. If an applicant does not file a timely application, the patent statute provides an applicant with a one-year grace period. However, this grace period applies to foreign filings.
Design patents can be challenged on the same grounds as a design patent application. Invalidity can be based on errors in identifying the correct inventors, fraud on the Patent Office, and prior art. An example of a cited prior art can make a design patent non patentable if it was obvious to someone else or did not solve a problem. Ultimately, the enforceability of a design patent is dependent on the legal and technical issues surrounding a design patent.
The duration of the enforceability of a design patent is fifteen years. The period of time begins on the date the patent was issued. However, the patent owner can extend the term through a serial process wherein multiple embodiments are filed in one application. A serial prosecution is also possible, with an applicant filing another application as the first approach nears grant. In the meantime, the patent owner will continue to have the right to sue the violator for an unregistered design patent.
Federal Circuit decisions in recent years highlight the importance of the title and claim language in a design patent. The title of the protected article is crucial to limiting the scope of the patent. The title and claim are key elements in determining the scope of a design patent, and they are important for both enforcement and procurement. In the current market, it is imperative to carefully consider the title and claim language. In the past, the Federal Circuit held that the title and claim language of a design patent narrowed the scope of applicable prior art.
The average pendency of a design patent application is significantly shorter than the pendency of a utility patent application. In addition to its strong protection, a design patent is widely enforceable. It is difficult to challenge the validity of a design patent in a district court or at the Patent Trial and Appeal Board. Furthermore, it offers an extremely attractive remedy for a successful enforcement campaign. If an outside party copies or imitates your design, it can face a hefty fine.
How to defend your patent rights
Patenting your design doesn’t mean you can sit back and expect the patent office enforce your rights. You, as a designer patent holder, need to be vigilant for any bad actors using your design without you permission.
Bad actors are known to ignore a cease-and-desist order. Design patent holders might have to file a lawsuit against them. If you’ve ever had to deal with a patent attorney, then you know how expensive their services can be.
This is something you need to keep in mind when you patent your design.
The value of design patents has been reaffirmed by market and legal developments over the last decade. Design patents are more affordable than utility patents and can be issued faster, enforced easier, and have higher damages recovery in infringement litigation.
If you are able to make a profit from your design, patenting it is worthwhile. Patenting a design can be expensive so make sure you only spend the money and time necessary to obtain a patent. An attorney can help you prepare and file the application for a design patent. If you have general questions or comments, feel free to contact us.