Preparing and filing a design patent is fairly simple—at least compared to preparing and filing a utility patent (for a useful invention, not a design). If you’re a self-starter with a do-it-yourself mindset, you can, with a bit of work, prepare your own design patent application and save hundreds (or thousands) of dollars. Below, we present the basic elements required when filing a design patent application. If you click on each element, you can learn more about how to prepare it.
The complete design patent application consists of:
- the “specification”—a written document that includes a preamble, description of the drawing and design, and a single “claim.”
- drawing(s) showing the appearance of your design
- the Design Patent Application Transmittal—a cover sheet that accompanies your application
- the Declaration—a simple oath provided by the designer
- the Fee Application Transmittal Form, and
- a filing fee (currently $125 for small entities)*
* In addition to the filing fee, there is also a Search Fee ($60), an Examination Fee ($80), and an Issue Fee ($495). Check the current fee schedule.
You can file the application by mail, or electronically, via the USPTO’s electronic filing system (EFS).
The designer is the “inventor.” For historical reasons, the USPTO often refers to the designer as the inventor and to the design as the invention. As the inventor/designer, only you have the right to apply for the design patent. Even if you signed away your rights to someone else or you were employed to create the design, you must still be listed as the inventor and sign the application. However, the issued patent application will indicate that your rights have been assigned. If someone else contributes to a new, nonobvious element of your design, that person is a co-inventor, and the two of you should reach an agreement as to ownership of the patent.
Employed to create. If you’re employed to create designs, your employer may own rights in any resulting design patents. Who owns the design depends on the contents of your employment agreement, your employer’s policies, whether you used your employer’s time and resources to create the design, and state laws regarding employee ownership rights. Read more about the rules.
Waiting period. Unless you pay for expedited processing of your application, you will have to wait one to two years for your design patent, and you cannot use it to stop others from copying your design until the patent has been granted. (The USPTO has indicated that it will place design patents on a faster track than utility patents, which can take two to three years.) Design patents automatically expire 14 years after they’re issued, and you cannot renew them.
For more self-help information: If you would like more self-help information beyond what’s provided at this site, read Patent It Yourself, by David Pressman (Nolo), or read and download the design patent information provided at the USPTO website. If you are interested in saving money, consider preparing patent drawings yourself using How to Make Patent Drawings. Alternatively, you can draft the text and hire a patent draftsperson to create professional drawings.
If you’re not the do-it-yourself type: You can always hire an attorney or patent agent to review and analyze your design and advise you on whether pursuing a design patent is worthwhile. The attorney or agent can prepare the application. If there is a problem at the USPTO—for example, an examiner challenges your application—the attorney or agent can respond and keep the application on track. In addition to the filing fees mentioned above, you’ll have to pay between $750 and $1,500 for:
- an attorney to draft and file the application, and
- a patent draftsperson to create the drawings, and