Design Patent Applications

Design patent applications protect new, original and ornamental designs for article of manufactures (i.e., things manufactured, by hand or machine).  See 35 USC 171.

Ornamental designs include surface indicia in the form of an ornament, impression, print, or picture on or embodied in an article of manufacture, and/or the shape or configuration of an article of manufacture.

To see examples of design patents, conduct a Quick Search by entering the letter “D” as "Term 1" and selecting "Patent Number" in "Field 1."  This will recover design patents granted by the USPTO, beginning with the most recently granted design patent, in the USPTO’s Patent Full-Text Databases (PatFT),.

Requirements

A design application requires a specification, drawings or photographs, an executed oath or declaration, and a fee.  To view an example of a design patent application, see Sample Design Patent Application.

Specification

Generally speaking, the specification includes a cross-reference to related patent applications (if applicable), a preamble, a description of the drawing figure or figures, a feature description, and a single claim.  Each part of the specification is typically preceded by a header, which appears in capital letters.  To view an example of a specification, which includes notations identifying its parts, see Sample Design Patent Application Specification.

The preamble is an introductory or opening statement of the specification.  It states the name of the inventor, the title of the design, and a brief description of the nature and intended use of the article (e.g., “I, Gary Edmund Major, have invented a new, original and ornamental design for a CAB ROOF for a loader machine.”).

The title of the design must refer to the article (e.g., “CAB ROOF”).

The description of the drawing figure or figures is a brief description of each drawing (e.g., “Fig. 1 is a front perspective view of a cab roof embodying my design.”).  The drawing description typically refers to one or more perspective views, elevational views taken from the front, right, left and rear sides of the article, and top and bottom plan views.

The feature description may include:

a description disclaiming portions of the article not shown in the drawing as forming no part of the claimed design (e.g., “The bottom forms no part of the claimed design.”),

a statement indicating the purpose of broken lines in the drawing (e.g., “The broken line showing the cab in Fig. 1 forms no part of the claimed design.”), and

a statement describing a particular feature of the design that is considered by the applicant to be a feature of novelty or non-obviousness over the prior art.

The design patent application must have a single claim, which must be directed to the “ornamental design for the article as shown, or as shown and described.” The title and the claim must correspond or agree with one another.

Drawings

The application must contain a sufficient number of views to constitute a complete disclosure of the appearance of the design.  Views typically include the front, rear, left, right, top and bottom of the design.  Perspective views are suggested and may be submitted to clearly show the appearance of three dimensional designs.

Views must be consistent with one another.  If the design has a flat bottom or is otherwise non-ornamental, a view of the bottom may be omitted if the specification includes a statement that the bottom is flat and/or devoid of surface ornamentation, or forms no part of the claimed design.

Surface shading should be used where it is necessary to delineate plane, concave, convex, raised, and/or depressed surfaces of the subject matter, and to distinguish between open and closed areas.

A structure that is not part of the claimed design but is considered necessary to show the environment of the design may be represented in the drawing by broken lines.

Photographs submitted in lieu of ink drawings must not disclose an environmental structure but must be limited to the design claimed for the article.

Declaration

In the declaration, the declarant (i.e., the inventors) has to declare each inventor’s residence, mailing address, and citizenship and identify the inventors as the original and first inventors of the subject matter which is claimed.  The declarant has to acknowledge the duty to disclose any information that is material to patentability and make reference to any priority claims to foreign patent applications (unless filing an Application Data Sheet). 

To view a sample declaration, see Sample Declaration.  The USPTO provides a declaration in the form of a fillable form PDF, referred to as a PTO/SB/01For additional forms, see Current PTO Forms.

For more information about declarations, see MPEP § 602.

Fees

The basic filing fee for filing a design patent application includes three fees: a filing fee, a search fee and an examination fee.  As of the date of this publication, these fees totaled $530 USD.  Fees ordinarily change in October each year.  For filing fees, see USPTO Fee Schedule

If the applicant is a small entity (e.g., has fewer than 500 employees), the applicant is entitled to pay a reduced statutory fee (i.e., the filing fee is reduced by 50%).  Hence, the total filing fees for a small entity is $265 USD.  The applicant must determine whether a small entity status is appropriate before making an assertion of entitlement to small entity status and paying a small entity fee. 

Cost

A design patent application is the simplest and least costly form of patent applications because it has a relatively brief disclosure, as compared to a utility patent application.  This is because the scope of protection in a design patent application is dictated by the drawings (i.e., “what you see is what you get.”)

The typical cost for preparing and filing a design patent application is about $1,500 USD.  This does not include the official filing fee to the US Patent and Trademark Office (USPTO) or the formal drawing costs.  The drawings are typically prepared by patent draftsmen, through patent graphics firms, and typically cost about $350 USD.

Resources

A useful resource for design patent applications is the Chapter 1500 of the Manual of Patent Examining Procedure (MPEP).  The MPEP is a manual published for use by the patent examining corps at the USPTO when examining design patent applications.  The MPEP provides an overview of statutes and rules applicable to design patent applications, defines the term "design," sets forth the elements of a design patent application, and covers the examination and allowance process of a design patent application, as well as post grant proceedings.

Another useful resource is “A Guide to Filing a Design Patent Application.” This guide is published by the Department of Commerce for use by the public when preparing and filing a design patent application. It is a narrative publication with sample disclosures, drawing examples and drawing symbols.

If you have a question about design patent applications, askme at thedford@askmeip.com