Don't let the term "patent" confuse you, design patents and utility patents are different forms of legal protection. Generally, a utility patent, which is what most people mean when they don't specify what type of patent, protects the way an invention works or is used (35 U.S.C. 101). In contrast, a design patent protects the way the invention looks (35 U.S.C. 171). Making it confusing at times, an invention may be eligible for one or more design patents and/or utility patents!
Some of the other differences between US design and utility patents are as follows:
1. Patent term: An utility patent application filed on or after June 8, 1995 has 20-year patent term from the earliest effective U.S. filing date (subject to any patent term adjustment, e.g., for PTO delay), while the term of a design patent is 14 years from the issue date (35 U.S.C. 173).
2. Maintenance fees: For a utility patent to remain in force, one must pay maintenance fees 3.5., 7.5., and 11.5 years (extendible six months with a surcharge fee) from the issue date (37 CFR 1.20), while design patents require no maintenance fees.
3. Claims: Design patents have a single claim, while utility patents typically have multiple claims.
4. Restrictions: The Examiner has discretion whether to restriction on multiple inventions in a utility application, but it's mandatory in design patent applications (MPEP § 1504.05).
5. International applications: the Patent Cooperation Treaty (PCT) permits extending foreign deadlines for multiple countries for utility patents, while design patents await implementation of Hague agreement hopefully late 2014.
6. Foreign filing deadlines: utility patent applications have up to 12 months after the first filing, while design application only have up to 6 months (35 U.S.C. 172). Don't forget this difference!
7. Provisionals: Utility patent applications may claim the benefit of a provisional application, while design patent applications cannot.
8. Request for Continued Examination: Available for utility patents application, but not for design applications.
9. Continued Prosecution Application (CPA): only available for design applications today.
10. Publication of Application: Required for all utility patent applications unless foreign filing rights are waived by the applicant, but design applications are not subject to publication.
This is a plain English version of MPEP 1502.01. See MPEP 1500 Design Patents for details.
Copyright © 2014 Robert Moll. All rights reserved.
