Protecting your Design in the USA

Protecting your Design in the USA

Design registration is treated differently in the USA than it is in Europe, instead of being a separate right it forms part of the patent system.

The definition of a design is “the visual ornamental characteristics embodied in, or applied to, an article of manufacture.”

In order to qualify for registration as a design patent the design must satisfy the following three criteria:

1. It must be new.

2. It must be original.

3. Be an ornamental design for an article of manufacture.

On the basis of this an application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. It only protects the appearance of the article and not structural or utilitarian features.

Where a design does not consist of any unique or distinctive shape or appearance which is not dictated primarily by the function of the article any attempt to register it will fail under the third requirement.

The period of protection available in relation to design patents is 14 years.

In terms of filing fees, the US Patent and Trademark office makes special provision for those who qualify for small entity status this is defined as independent inventors, small businesses and non profit organisations. Applicants who fall within this category are eligible to pay the lower level of fees, in relation to the application and after registration maintenance of the right, a reduction of 50% on the normal level.

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