United States patent laws provide for the granting of design patents to any person who has invented any new and nonobvious ornamental design for an article of manufacture. The design patent protects only the appearance of an article, but not its structural or functional features. The proceedings relating to granting of design patents are the same as those relating to other patents with a few differences. See the U.S. Patent and Trademark Office (PTO) current fee schedule for the filing fee for a design application.
What is a Design
A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. 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.
A design patent has a term of 14 years from grant, and no fees are necessary to maintain a design patent in force. If on examination it is determined that an applicant is entitled to a design patent under the law, a notice of allowance will be sent to the applicant or applicant’s attorney, or agent, calling for the payment of an issue fee. The drawing of the design patent conforms to the same rules as other drawings, but no reference characters are allowed and the drawing should clearly depict the appearance, since the drawing defines the scope of patent protection. The specification of a design application is short and ordinarily follows a set form. Only one claim is permitted, following a set form that refers to the drawing(s).
Design or Utility?
In general terms, a “design patent” protects the way an article looks, while a “utility patent” protects the way an article is used and works. Both design and utility patents may be obtained on an article if invention resides both in its utility and ornamental appearance. While utility and design patents afford legally separate protection, the utility of an article are not easily separable. Articles of manufacture may possess both functional and ornamental characteristics.
Design patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof.
To get a U.S. utility patent, an application must be filed with the PTO. You can use the PTO’s electronic filing system to submit a utility patent application to the U.S. Patent & Trademark Office. A Utility Patent Application Transmittal Form (Form PTO/SB/05) or a transmittal letter should be filed with every patent application to instruct the USPTO as to what actual types of papers are being filed (e.g., specification, claims, drawings, declaration, information disclosure statement). It identifies the name of the applicant, the type of application, the title of the invention, the contents of the application, and any accompanying enclosures. Get more information from the PTO: A Guide to Filing a Non-Provisional (Utility) Patent Application.
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