Design Application for Patent

 

A design patent, as described by the US Patent and Trademarks Office, “consists of the visual ornamental characteristics in, or applied to, an article of manufacture.” This means that, while a utility patent deals with how a device works, a design patent focuses on how a device looks. If an inventor comes up with an original, unique design for the physical appearance of a device, the inventor is able to file a design patent.

It is important to understand what qualifies for a design patent and what does not. If the shape or surface design of an object is based on its function, it is not considered “ornamental” and does not qualify for a design patent. A milling machine, for example, has a shape defined by the need for the milling head to travel along various axes. This results in a design that is not ornamental and is not acceptable for a design patent. A design patent can be filed if the surface design of an object has no effect on the objects function, such as the shape of a Coke bottle. Finally, a design patent only protects the ornamental appearance of a device, not its function or structure. If you are seeking to protect the function of an invention, a utility patent will be necessary.

The design can relate to the whole device, a part of the device, or even something that is attached to the device. Whatever part of the device’s design the inventor wishes to patent, it must be made very clear which parts of the device are not included in the claimed design. There is a very simple method for differentiating the two, and it allows the inventor to show the design in its “environment” without confusing the examiner. Ensuring the examiner fully understands your application is important, otherwise the application will be rejected and will require modifications to the drawings before resubmission.

Due to the simplicity of a design patent compared to a utility patent, the cost of filing a design patent is about one-third the cost of filing a utility patent. Additionally, it’s much easier to get a design patent granted by the USPTO, partly because of the simplicity of the requirements.

Sections of a Design Application for Patent

A design application has six sections:
1) Preamble, which gives basic information regarding the application (applicant name, patent title, brief description, etc.).
2) Description of the figures presented in the drawing section.
3) A description of features (optional).
4) A single claim (design patents cannot have more than one claim).
5) Drawings (or photographs).
6) Executed oath or declaration.

When selecting a title for the application, it helps to choose one that describes the nature of the design. Using a “code name” does not help the examiner, or the general public, understand the purpose of the invention. A short, informative name is best.

The description of the figures, also known as the Specification, is usually simplified into a list that describes the view of each figure (isometric view, top view, etc.). Additional information is not required, as the drawings themselves are the best way to describe the design. The Specification section may also include additional information, such as descriptions of the design’s use (if that was not already covered in the preamble).

As mentioned above, design patents only have one claim, which defines the design “as shown.” If there is a specific verbal description of the design, the design is claimed “as shown and described.” As there are no other aspects of the patent other than the design, additional claims are not necessary.

The drawing section is the most important aspect of the design patent, and care should be taken to ensure every aspect of the design is visibly presented in this section. Generally, the drawing section should have a minimum of seven figures: top, bottom, front, back, left, right, and a perspective view. If two views are mirror images (left and right side of a chair, for example), it is acceptable to present only one figure, and state the mirror image nature of the two sides in the description of the figures. More complex designs will require more figures. If, for example, the design has moving components, perspective drawings should be included of the design in its various states of motion.

Drawings are required to use black ink on white paper.

Broken lines in a drawing are used to portray components that are not claimed in the patent, but are important aspects of the design’s “environment” that need to be displayed to better understand the design’s usage.

Submitting a Design Application for Patent

The actual process of applying for a design patent is relatively simple. The first step is to draft an application that includes all of the sections mentioned above, with emphasis on the drawing section. The application is then filed with the USPTO, along with the correct filing fee. Upon receiving both the application and fee, the Office assigns the application an Application Number and a Filing Date. The applicant is then sent a Filing Receipt that contains this and other relevant information. An examiner checks the application for adherence to filing rules and formalities, completeness and accuracy of the drawings, and compares the design with “prior art,” which constitutes all of the public information and filed patents prior to the filing date of the patent under examination. If the examiner feels that the design is patentable, then the application is considered “allowed,” and the applicant is given instructions on how to finalize the application process.

If the patent application is unclear, however, or if prior art shows that the claim is unpatentable, then the examiner will reject the patent and issue an Office Action to the applicant. The Office Action explains what aspects of the patent application were unsatisfactory, and tends to offer suggestions for rectifying these errors. A response is required from the applicant in a timely manner or the application will be considered abandoned. The applicant must address every error listed by the examiner for the application to be reconsidered.

Upon receiving the response, the examiner will review the changes and either withdraw the rejection or repeat it and make it “final.” If an application is rejected again in this way, the applicant my attempt to file an appeal with the Patent Trial and Appeal Board.

 

 

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Marin Cionca, Esq.

Registered Patent Attorney

USPTO Reg. No. 63899

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