The Rise of Design Patents Over the Past Decade | Erise IP

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Design patents are no longer the poor cousin in the patent world. Today, they take their place around the table with utility patents, copyrights and trademarks as part of an overall intellectual property protection strategy.

Here’s some important background behind the rise in design patent filings and how they can provide another layer of protection.

Design patent filings increase

In the ten years since Apple’s $500 million verdict against Samsung for infringement of its iPhone design patent, the increase in design patent filings has tripled. And in 2021, U.S. design patent filings jumped about 17% to 54,201 design patents.

Most design patents are on graphical user interfaces and products. Since the United States has moved to a first-to-file system, filing early is essential to protect the look of your company’s graphical user interfaces and products. Therefore, a design patent could be an essential part of your intellectual property protection plan before launching a product or interface with a unique appearance that could become a target for counterfeiters looking to capitalize on your investment in research and development. The trend of design patents in the United States is consistent with the increase in design patents filed around the world.

The role of design patents

Design patents play a crucial role in protecting your company’s products and graphical user interfaces from competitors. This allows companies to distinguish themselves, not only in terms of technology, but also in terms of design.

Design patents ensure that competitors cannot use your primary designs in the market for products. And they can also protect against sellers of counterfeit goods, whether or not the counterfeiter is copying trademarks. And some sellers of counterfeit products even file their design patents using original product designs with minor adjustments. In summary, design patents protect graphical user interfaces and products that are central to a company’s brand image and aesthetics. This protection is essential to protect against competitors and imitators.

Advantages of design patents over utility patents

Design patents are cheaper, faster to obtain and more difficult to invalidate than utility patents:

  • Filing fees for design patents are 30-40% lower than for utility patents.
  • Design patents are granted in about 20 months, unlike utility patents which are granted in about 30 months.
  • Inter partes review procedures have been very effective in invalidating utility patents, with a rate of about 65% of applications filed. By contrast, design patent applications are only filed about 45% of the time.

As a bonus, design patents provide good remedies in the district court. District courts grant preliminary injunctions more frequently in design patent cases than in utility patent cases. And in design patent cases, patent holders can get a reasonable royalty or even full profits from an infringer, making it a costly threat to infringers.

Basically, design patents protect the design of websites and graphical user interfaces from competitors seeking to confuse consumers with designs that mimic a popular product or service. In today’s market, failure to apply for a design patent can have serious consequences, as competitors may use a similar design and seek design patent protection. If this happens, you may have to make costly and time-consuming changes to your product or, even worse, you could be locked out of using your design altogether.

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