A design patent relates to a new, useful and ornamental article of manufacture. When most people think of a patent, they think of a utility patent directed to a technological invention: an article, apparatus, process or composition of matter that is useful, new and non-obvious. A design patent is a different kind of patent.
Just as with a technology utility patent, the patented thing must be new and non-obvious. But it also must be ornamental. It must embody an ornamental design or reflect ornamental or aesthetic judgment beyond that required to make an efficient, functioning article.
For example, the well-known Bic ballpoint pen is an article of manufacture. It incorporates various ornamental features, such as a transparent body of six-sided cross-section, a gold plastic tip assembly, an internal translucent tube for holding the ink, and an end cap whose color is that of the ink contained in the pen. In these respects, the pen incorporates various elements of aesthetic judgment and therefore could be protected by a design patent.
The degree of aesthetic judgment required to confer ornamentation on the design of a functional article of manufacture, however, is not terribly high.
While the duration of a technology utility patent is generally 20 years from the date the patent application was filed, the duration of a design patent is 14 years from the date the patent has issued. Also, while maintenance fees (payable at 3, 7 and 11 years after issue) are required to keep a utility patent from lapsing, no additional fees are due for a design patent after it issues.
The scope of protection for a design patent is different from the scope of protection for a technology patent. A design patent prevents others from making articles of manufacture that have the same (or equivalent) ornamental features as the depicted invention. Both utility and design patents enable their owners to place a patent marking on articles of manufacture that practice the patented invention, which significantly discourages competitors from attempting to market similar articles without a license.
If embodiments of your invention have ornamental aspects, consider applying for a design patent to further protect your intellectual property.
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