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Design Registration in the USA

In most countries patents and registered designs are separate and distinct, but in the USA the shape and appearance of a manufactured article is protected by a special kind of patent, known as a design patent. 

Design patents may be granted to anyone who “invents a new, original and ornamental design for an article of manufacture”. 

The basis in patent law is revealed by the requirement to file a written “specification” which includes a formal patent claim.  In reality, the description contained in the specification consists of nothing more than a title and a brief description of the various Figures comprised in the drawings.  The claim is of standard format along the lines of “I claim the ornamental design for a [title] as shown”. 

In the UK and Europe the formal requirements for the various images showing the design are now pretty relaxed.  Formal objections to the depictions of the design are quite rare, and one gets the impression that if the applicant decides not to show the design clearly and completely that is of no real concern to the registration authorities (although this may come back to bite an unwitting applicant if his design is copied).  In contrast, the United States still applies very strict formal requirements, and formal objections are relatively common. Indeed, one often has a mental image of US Examiners going over the drawings with a magnifying glass looking for ragged or uneven lines.  The various views are also scrutinized for any inconsistencies between them, and if any aspect of the design is deemed unclear it may be necessary to submit amended drawings. 

Views are required to show the article from all sides, and in perspective, in order to comply with the requirement to disclose the design completely and clearly.  It is also possible to disclaim certain features shown in the drawings, showing the disclaimed features in dashed lines. 

The duration of US design patents is also derived historically from utility patents, running for fourteen years from the date of issue.  This is a fixed term, which again is out of step with the rest of the world where the lifetime of a design registration can be considerably longer.  However, no maintenance fees are payable to keep a design patent in force, so although examination costs can be relatively high, no additional costs are normally incurred during the lifetime.

© Craske & Co., 2009

Last updated: 27 December 2010