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Understanding Design Patents: A Brief Guide

Design patents are a crucial aspect of intellectual property law, providing protection for the unique visual qualities of a product. Unlike utility patents, which protect the functional aspects of an invention, design patents focus solely on the ornamental design. This article explores the intricacies of design patents, including their purpose, application process, and legal implications.

What is a Design Patent?

A design patent protects the unique visual appearance of a product. This includes the shape, configuration, surface ornamentation, or the combination of these elements. It does not cover the functional aspects of the product, which are protected by utility patents. The primary goal of a design patent is to prevent others from making, using, or selling a product that looks substantially similar to the patented design.

The Importance of Design Patents

Design patents are vital for several reasons:

  • Market Differentiation: A unique design can differentiate a product in a crowded market, making it more attractive to consumers.
  • Brand Identity: Consistent design elements can help establish a strong brand identity.
  • Competitive Advantage: Protecting a unique design prevents competitors from copying and profiting from your innovation.
  • Monetary Value: Design patents can increase the overall value of a product, leading to higher sales and potentially licensing opportunities.

Criteria for a Design Patent

To qualify for a design patent, an invention must meet three main criteria:

  • Novelty: The design must be new and not previously disclosed to the public.
  • Non-Obviousness: The design must not be an obvious improvement or alteration of existing designs.
  • Ornamentality: The design must be purely ornamental and not dictated by functional considerations.


A design patent protects the unique visual appearance of a product, including its shape, configuration, and surface ornamentation. A utility patent, on the other hand, protects the functional aspects of an invention, such as how it works or how it is used.

The process of obtaining a design patent typically takes around 18 months from the filing date, depending on the complexity of the design and the backlog of applications at the United States Patent and Trademark Office (USPTO).

Yes, but you must file for a design patent within one year of the product’s first public disclosure. Failing to file within this timeframe may result in losing the ability to patent the design.

The costs of obtaining a design patent can vary depending on the complexity of the design and the specific services provided by your patent attorney. Costs typically include USPTO filing fees, attorney fees, and possible additional costs for drawings and revisions.

A design patent attorney can assist you with every step of the application process, from conducting a thorough search to ensure your design is unique, to preparing and filing the application, and navigating any challenges that arise during the examination process.

Their expertise ensures that your application is robust and has the best chance of being approved.

The Application Process

The process of obtaining a design patent involves several steps:

  1. Preparation: Before filing, an inventor should conduct a thorough search to ensure the design is unique. This can be done through the United States Patent and Trademark Office (USPTO) database or with the help of a patent attorney.


  2. Filing the Application: The application must include several key components:
    • Drawings: Detailed drawings of the design from multiple angles.
    • Specification: A brief description of the design and its features.
    • Claim: A single claim that defines the scope of the design protection.

  3. Examination: The USPTO will examine the application to ensure it meets all legal requirements. This process averages around 18 months, depending on the complexity of the design and the backlog of applications.

  4. Approval: If the application is approved, the design patent will be granted, typically lasting 15 years from the date of grant.

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Enforcement and Infringement

Once a design patent is granted, the patent holder has the exclusive right to use the design. If someone else makes, uses, or sells a product that is substantially similar to the patented design, they may be infringing on the patent. In such cases, the patent holder can take legal action to enforce their rights. 

This may involve:

  • Cease and Desist Letters: A formal request to stop the infringing activity.
  • Litigation: Filing a lawsuit in federal court to seek damages and injunctions against the infringer.
  • Settlement: Negotiating a settlement agreement to resolve the dispute without going to court.

International Design Patents

Design patent protection is territorial, meaning it only applies within the country where it is granted. However, inventors can seek international protection through mechanisms such as the Hague Agreement Concerning the International Registration of Industrial Designs. This allows inventors to file a single international application that can provide protection in multiple member countries.

Working directly with you to simplify your design patent application process from start to finish.

We help you explored all viable IP protection options, no mater how simple or complex.

We provide you with a strategy that provides the most comprehensive protection for your IP.

Case Studies

Several high-profile cases highlight the importance of design patents:

Apple vs. Samsung: One of the most famous design patent cases involved Apple suing Samsung for infringing on the design of the iPhone. Apple argued that Samsung’s smartphones copied the distinctive look of the iPhone, leading to a lengthy legal battle. The case ultimately resulted in a significant financial settlement in favor of Apple, underscoring the value of design patents in protecting innovative products.

Crocs vs. USA Dawgs: Crocs, the maker of the iconic foam clogs, filed a design patent infringement lawsuit against USA Dawgs. Crocs claimed that USA Dawgs’ footwear designs were substantially similar to its patented designs. The case highlighted the role of design patents in the fashion industry, where visual appearance is a critical component of product differentiation.

Shifting The Standard of Obviousness in Design Patents

LKQ vs. GM: Changed the Rosen-Durling test for obviousness by finding that (1) the primary reference be “basically the same” as the challenged design claim; and (2) any secondary references be “so related” to the primary reference that features in one would suggest application of those features to the other—are improperly rigid

The court reassessed the standard of obviousness for design patents. While the court did not entirely discard the Rosen-Durling test, it emphasized the need for a more nuanced approach, aligning with the principles set forth in KSR.

The Federal Circuit highlighted several key points:

  • Holistic Analysis: The court emphasized the importance of a holistic analysis, considering the design as a whole rather than dissecting it into individual elements, including making determinations about what would be obvious to the ordinary designer in the field of the design.
  • Flexible Approach: The decision underscored the need for flexibility in evaluating obviousness, allowing for the integration of common-sense reasoning and the creativity of designers.
  • Role of Prior Art: The court clarified that prior art references should not be limited to a single primary reference but could include a combination of references, reflecting the iterative nature of design innovation.

The Federal Circuit’s decision in LKQ v. GM has far-reaching implications for the field of design patents:

  • Increased Scrutiny: The decision is likely to lead to increased scrutiny of design patent applications, requiring more robust evidence to establish non-obviousness.
  • Broader Scope of Prior Art: The flexible approach allows for a broader scope of prior art to be considered, potentially making it more challenging to obtain design patents.
  • Enhanced Protection: For patent holders, the decision provides a more nuanced framework for defending against invalidity challenges, emphasizing the importance of a comprehensive analysis.

For more information on this case, check out this PDF for download about LKQ vs. GM

Future Trends

The landscape of design patents is continually evolving, with several trends shaping the future:

Digital and Virtual Designs: As technology advances, the scope of design patents is expanding to include digital and virtual designs, such as graphical user interfaces (GUIs) and virtual reality (VR) environments.

3D Printing: The rise of 3D printing technology presents both opportunities and challenges for design patents. While it enables rapid prototyping and customization, it also raises concerns about unauthorized reproduction of patented designs.

Global Harmonization: Efforts are underway to harmonize design patent laws across different countries, making it easier for inventors to obtain international protection.


Design patents are a vital tool for protecting the unique visual aspects of products, offering benefits such as market differentiation, brand identity, and competitive advantage. While the process of obtaining and enforcing design patents can be complex and costly, the protection they provide is invaluable for inventors and businesses alike. 

As the landscape of design patents continues to evolve, staying informed about the latest trends and legal developments is essential for maximizing the value of your intellectual property.

We are here to help you.  Please contact Michael Meyer Law and start protecting your invention today.