Combing Through Design Patents
The United States Patent and Trademark Office (“USPTO”) recently reached an important milestone. On September 26, 2023, the USPTO issued its millionth design patent. United States Patent D1,000,000 covers the ornamental design for a dispensing comb, as shown below.
FIG. 7 of U.S. Patent No. D1,000,000
As a brief primer, design patents protect the ornamental aspects of an invention, compared with utility patents, which protect the functional aspects of an invention. While utility patents may include several claims, often about 20, a design patent may only have a single claim. To qualify for a design patent, the design must be novel (35 U.S.C. § 102), non-obvious (35 U.S.C. § 103), and ornamental (35 U.S.C. § 171). Design patent protection lasts for fifteen years from issuance of the design patent.
Design patent filings in the U.S. have continued to grow in popularity, as highlighted at the USPTO’s 16th Annual Design Day held earlier this year. Importantly, design patent filings have also adapted with the times to remain a signal of current and forthcoming innovation, as indicated by the recent dominance of Graphical User Interface (“GUI”) design claims. As illustrated by the graph of USPTO Design Patent Activity below, annual filing numbers have increased by approximately 20% over the past five years, with the USPTO having received over 50,000 design patent applications in each of 2021 and 2022.
To accommodate the increase in applications—and clearly indicating that the interest in design filings is not expected to wane—the USPTO has hired significantly more design patent examiners over the past few years.
The sustained rise in design patent filings may be due to the realization that design protection is both accessible and powerful. When compared with utility patent protection, there is a lower cost to prepare, file, and maintain design patents, which means that design protection may be right-sized for entrepreneurs across any industry, including hairstylists. Further, design patents protect what may be the most critical aspect of a product—its visual appearance. While both design patents and utility patents allow for an award of lost profits or a reasonable royalty, design patents also provide an exclusive key to unlocking an award of total profits for sales of any infringing article of manufacture incorporating the claimed design. With this combination of powerful protection and accessibility, design patents provide an attractive asset that can allow companies large and small, as well as individual inventors, to protect their products and grow the value of their portfolios.
To learn more about incorporating design protection into your IP portfolio, please attend a webinar hosted by two of our resident design practitioners on November 2, 2023, from 12-1pm CST. For more information and to register, please click here.