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So, you have developed a new product that has a unique look or appearance. You now wish to keep others from copying your unique creation. A utility patent would allow you to protect the functional aspects of your new invention. If the functional aspects already exist (meaning you cannot claim them as your own), you may be able to protect the design or how the invention looks. The way to do this is with a design patent.
A design patent protects the aesthetic or ornamental features of a product or article of manufacture. It does not pertain to the usefulness or utility of the underlying invention. As such, you may be able to protect the appearance of the invention without needing to defend the uniqueness of the mechanical function. As with utility patents, to acquire design patent protections, you must file a patent application with the United States Patent and Trademark Office (USPTO).
The USPTO will examine your design application to make certain that it meets the legal requirements. For example, the design must be attached to an article of manufacture and it must be novel and non-obvious in nature. Novel means that this design has not been previously patented or otherwise disclosed to the public through sale.
Now that you know your options, it’s time to learn about the process for securing your patent. This article identifies the steps involved in acquiring design patent rights and the costs associated with each step. Knowing the upfront costs of filing a design patent can help in your determination of whether to file. It can also help you save money by understanding where it is most important to allocate your funds in the process.
The initial costs for securing a design patent can be broken into several parts, as follows:
Researching Prior Design Patents
A major cost that might arise before filing the patent application is a patent search. You will need to determine whether someone already holds patent rights in your product design. With a design patent, you are primarily looking for designs of the same types of invention. You can complete this step on your own for free with the help of several public databases, such as Google Patents, Espace and Patentscope. Hiring a patent search firm to search for your design will cost anywhere from $300-1,000. A patent attorney undertaking the search for you will likely charge between $500-1,000. This fee, however, is generally rolled into the entire cost of the design patent application.
Preparing The Design Patent Application
Once you have conducted a thorough patent search and are confident that no conflicting designs exist, you will need to draft the design patent application. Luckily, if you are going to employ the services of a patent attorney to assist you in filing the design patent, most patent lawyers include the price of conducting a thorough patent search in the total price of drafting and filing the design patent application documents. Generally, the total price for searching for designs and drafting the complete design application is between $1,500 and $5,000. The costs may vary this much for the same services depending upon the size and reputation of the firm employed.
Filing The Patent Application With The USPTO
As previously stated, you must file the patent application with the USPTO. There are several fees applicable depending upon the stage of filing and purpose. The fees for filing a design patent application with the USPTO is split up based upon the size of the entity filing the application. A “large entity” is defined as any entity that does not qualify as a small entity. A “small entity” is a business is a person or entity with less than 500 employees or any nonprofit. A “micro-entity” is defined as meeting the small-entity requirements, plus the entity cannot be named in more than four other patent applications and must not exceed a gross income limited posted here.
The application filing fee is only the beginning of costs associated with a design patent.
Basic filing fee — design
• Large entity: $200
• Small entity: $100
• Micro-entity: $50
If the original design application is denied, the applicant will need to make file a continued prosecution application or CPA. The basic filing fees for design CPA are the same as the above.
If for some reason the design application exceeds 50 pages, the fee schedule is increased as follows:
Design application size fee — for each additional 50 sheets that exceeds 100 sheets
• Large entity: $400
• Small entity: $200
• Micro-entity: $100
In addition to the patent application fee, the USPTO also charges a patent search fee, as follows:
Design search fee or design CPA search fee
• Large entity: $160
• Small entity: $80
• Micro-entity: $40
Once the design patent application is received, searched and examined, the USPTO will make a decision on whether to grant patent rights.
As you can tell from the above-referenced material, the process for searching, applying, prosecuting and ultimately securing patent protections is rather complicated. This is not to say you cannot complete the process on your own. Many inventors successfully navigate this process and secure patent rights in their invention. This approach, however, is not without risks.
The primary risk of undertaking the patent process alone concerns making a mistake that ultimately forfeits your ability to protect your invention. Most notably, failing to meet deadlines is the greatest culprit in this arena.
The next risk is not adequately protecting your rights to the extent possible. Most patents grant upon the claimed protections in the patent specification. A poorly drafted claim or specification could result in the issuance of patent rights that fail to adequately protect an invention against copy by competitors.
Lastly, the final risk relates to cost. As you can see, filing anything with the USPTO is very expensive. Making an error in the application process may lead to the need for additional filings and additional fees.
In summary, you should consider working with an experienced patent attorney when undertaking to secure design patent rights. They can provide you with the timely guidance and services you need to secure your intellectual property rights.
The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.
December 21, 2018 at 08:20AM
Forbes – Entrepreneurs