Design Patents: What are they?

Design Patents: What are they?

by Heleigh Bostwick, December 2009

What might a surfboard, bracelet, clay pot, and musical instrument have in common? They look so good, they've been patented. If you recently have come up with a perfect product design, you may have also wondered how to protect it from being copied. The best way to protect your brilliant product is consider a design patent.

What is a Patent?

A patent is a property right granted by the U. S. Patent and Trademark Office (USPTO) to an inventor for an article for manufacture that he or she creates. Patents legally prohibit anyone from manufacturing, using, selling, or offering to sell the invention within the United States or from importing it into the United States. A patent is issued for a limited amount of time in exchange for public disclosure regarding the details of the invention at the time the patent is granted. In many countries, a patent is referred to as a registration.

There are several types of patents, but the most common are utility, design, and plant patents. Utility patents refer to how an invention functions or works and are issued for a period of 20 years. Design patents protect the ornamental design of an object such as the configuration or shape of the object or the surface ornamentation and are good for 14 years. Plant patents, which remain in effect for 17 years from the date of issue, are used in botanical research for the discovery of new cultivars or varieties of asexually reproducing plants.

Why Is a Design Patent Necessary?

Obtaining a design patent is necessary if you want to protect the appearance of the invention you have designed. It does not apply to the inner workings of the object, if there are any. To patent how something works, apply for a separate utility patent.

Let's say you have designed a flowerpot in the shape of a toilet, something you discover that no one else has done (probably with good reason!). If you apply for and are issued a design patent, no one else can use, make, or sell this particular design—a flowerpot in the shape of a toilet—for the next 14 years, the term of a design patent. Of course, if you are not concerned about anyone else copying and using your design, then a design patent is not a necessity.

How to File for a Design Patent

Filing for a design patent is fairly straightforward; only one claim can be applied for at a time. Applications must include the name of the applicant, title of the design, a brief description of the object and its intended use, along with a detailed description of the "design" to be protected.

Applicants should also cross-reference other patent applications (e.g. utility patent) and provide a statement as to whether the design is part of a federally funded research project.

The drawings and photographs submitted to the PTO are perhaps the most important aspect of a design patent application. These visual helpers must speak for the design itself, conveying without words or descriptions the design of the object. Make sure to use black and white drawings or black and white photographs. Colored drawings or photographs are only acceptable if an applicant has petitioned to do so.

Applicants must also pay filing, search, and examination fees. The fees are substantially less if the applicant is an independent inventor, small business, or non-profit organization. For specific requirements or questions about design patents contact the United States Patent and Trademark Office or visit their website,