What Is a Design Patent and When Should You File One?
- Alan Yomtobian
- Apr 6
- 4 min read
By Alan Yomtobian, Esq. — Patent Bar #81,255
KEY TAKEAWAYS
A design patent protects the ornamental appearance of a functional article — the way a product looks, not how it works. Under 35 U.S.C. 171, a design patent is granted to anyone who has invented a "new, original, and ornamental design for an article of manufacture." Design patents last 15 years from the grant date, require no maintenance fees, cost significantly less than utility patents ($3,000-$8,000 total vs. $7,000-$20,000+), and are granted faster (average 19-21 months vs. 22-24 months for utility). Companies like Apple, Samsung, and Google, and Amazon rely heavily on design patents to protect iconic product appearances. Filing a design patent application is strategically valuable when your product's visual design is a key market differentiator.
How Is a Design Patent Different from a Utility Patent?
A design patent protects how a product looks; a utility patent protects how it works. This fundamental distinction determines which type of patent is appropriate for your invention and, in many cases, filing both provides the strongest protection.
Feature | Design Patent | Utility Patent |
Protects | Ornamental appearance | Function, process, composition |
Term | 15 years from grant | 20 years from filing |
Maintenance Fees | None | Required at 3.5, 7.5, 11.5 years |
Number of Claims | Single claim (the drawing) | Multiple claims (20 typical) |
Average Cost | $3,000-$8,000 | $7,000-$20,000+ |
Average Prosecution Time | 19-21 months | 22-24 months |
Infringement Standard | Ordinary observer test | All-limitations test |
The landmark case Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc) established the "ordinary observer" test for design patent infringement: would an ordinary observer, giving such attention as a purchaser usually gives, find the accused design substantially the same as the patented design? This is a visual comparison, making design patents particularly effective against copycat products.
Related Article: Types of Patents Explained
What Are the Requirements for a Design Patent Application?
Eligibility criteria for design patents require novelty, non-obviousness, originality, and ornamentality. Novelty means it must be new. Non-obvious means it cannot be an obvious extension of known designs. Originality means the design must originate from the applicant. And Ornamentality means the design must be aesthetic, not functional.
For filing a design patent application, a design patent application requires formal drawings that precisely illustrate the claimed design, a single claim, a brief specification, and an oath or declaration. The drawings are the most critical element because they define the entire scope of protection. For official filing guidance, see the USPTO Design Patent page, the USPTO application page, and Patent Center.
Application components:
1. Drawings — Must show every view of the design (front, back, top, bottom, left, right, perspective). Use solid lines for claimed features and broken lines for unclaimed environmental structure. Under 37 CFR 1.152, drawings must be consistent across views.
2. Single Claim — Always in the format: "The ornamental design for [article of manufacture] as shown and described." The claim scope is defined entirely by the drawings.
3. Specification — Brief description of each figure (e.g., "FIG. 1 is a front perspective view of [article]")
4. Oath/Declaration — Stating the applicant is the true inventor of the claimed design
Drawing quality directly impacts protection scope. Professional patent illustrators understand the conventions that maximize claim breadth while meeting USPTO requirements. Invest in quality drawings — they are the single most important part of a design patent.
Why Your Product is Patentable From a Design Perspective?
From a design perspective, your product could be patentable if (1) it displays unique visual ornamental attributes of the product, such as a different type of handle on a vase, or (2) it represents an original, distinct design that differentiates it from other designs, such as a
When Should You File Both Design and Utility Patents?
File both when your product has a distinctive appearance AND novel functionality. This dual-filing strategy provides overlapping protection that is extremely difficult for competitors to design around, because they must avoid both the visual appearance and the functional mechanism.
Examples of dual-filing strategies:
· Consumer electronics: Apple filed both design patents on iPhone appearance and utility patents on touchscreen functionality
· Footwear: Nike files design patents on shoe designs and utility patents on cushioning technology
· Furniture: Herman Miller protects the Aeron chair's appearance (design) and its ergonomic mechanism (utility)
The dual-filing strategy is particularly valuable because:
· Design patents are cheaper and faster to obtain
· Design patents have no maintenance fees
· Design patent infringement is visually assessed (easier to prove against copycats)
· Utility patents protect against functional equivalents that look different
· Together, they create a comprehensive protection barrier
FAQ: Design Patents
Q: Can I file a design patent for a digital interface or icon?
A: Yes. Since the 2012 guidelines, the USPTO grants design patents for computer-generated icons, graphical user interfaces (GUIs), and digital display screens. Apple, Google, and Microsoft hold thousands of GUI design patents.
Q: How long does a design patent last?
A: Design patents filed after May 13, 2015 last 15 years from the grant date. No maintenance fees are required. Design patents filed before that date last 14 years from grant.
Q: Can a design patent be invalidated?
A: Yes, through inter partes review (IPR) at the PTAB or in federal court litigation. The most common grounds are prior art showing the design was not novel or was obvious.
Q: Do I need a prototype to file a design patent?
A: No. You need detailed drawings illustrating the design, but a physical prototype is not required. Computer-generated 3D renderings are commonly used.
Q: What damages can I recover for design patent infringement?
A: Under 35 U.S.C. 289, you can recover the infringer's total profit from selling the infringing article. In Samsung Electronics Co. v. Apple Inc., 137 S. Ct. 429 (2016), the Supreme Court addressed how to calculate the "article of manufacture" for total profit damages.
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Legal Disclaimer: This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this content. Patent law is complex and fact-specific; consult a qualified patent attorney for advice on your particular situation.
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