The role of design patents: protecting toys and games


Often when people think of patents, they think of what are called “utility” patents. Utility patents protect functional aspects of an invention, for example, the operation of an apparatus or the specific combination and configuration of the components that make up the apparatus. However, there is also another category of patents called “design” patents. Design patents protect the ornamental aspect of an invention. This article discusses the important role that design patents play in the toy and game industry.

Design patents protect the unique ornamental appearance of a product

Many new products in the toy and gaming industry are updated versions or variations of pre-existing toys and games. This can make it difficult, if not impossible, to obtain utility patent protection on the product. However, design patents may still be available to protect the unique ornamental appearance of an otherwise conventional product.

For example, with board games, a design patent can be used to protect the unique appearance of game pieces, casters, timers, and in some cases the game board. For toys, a patent for toys. design may be available to protect, for example, the ornamental appearance of an action figure or toy car. In these cases, design patent protection can be particularly useful in combating counterfeits and counterfeits, especially when the main selling point of the product is its unique appearance or theme.

Design patents are relatively quick, easy and inexpensive to obtain

The time between filing a design patent application and being granted by the US Patent and Trademark Office is relatively short compared to utility patents. According to a recent study, over 50% of design patents are granted within one year of filing, and around 90% of design patents are granted within two years of filing.1 In comparison, utility patents have an average lifespan of over 2.5 years.2 The short waiting time for design patents is a big advantage in the toy and game industry, where products tend to have a short lifecycle.

Additionally, most design patent applications are subject to few or no rejections upon examination by the US Patent and Trademark Office. In fact, over 80% of design patent applications are allowed without any rejection.3 This contrasts with utility patent applications, which receive an average of 2.4 actions from the Office before being granted as that patent.

In addition, design patents are much more affordable than utility patents. To begin with, the US Patent and Trademark Office filing fee for a design patent application is $ 460 for a large entity and $ 230 for a small entity, while the filing fee for a design patent application is $ 460 for a large entity and $ 230 for a small entity. utility patents are $ 1,030 and $ 515 for large and small entities, respectively. More importantly, attorney’s fees and draftsman’s fees for preparing and filing a design patent application are typically only a small fraction of fees for utility applications. Coupled with lower fees to meet U.S. Patent and Trademark Office rejections and lower official fees, the cost of obtaining a design patent can be less than a third of that of a patent. usefulness. The relatively inexpensive nature of design patents makes them a good strategy for small and medium-sized businesses that don’t have the budget to get utility patents on all of their products.

Design patents can complement other forms of intellectual property

Design patents can also be used in tandem with other forms of intellectual property. For example, design patents can serve as a precursor and / or supplement to trade dress protection. In order to register trade dress for the appearance of a product, the appearance must be distinctive in the eyes of the consumer. This usually requires that the product be on the market for a significant period of time.

The exclusive right to the appearance of the product granted by a design patent may allow the appearance of the product to achieve the level of distinctiveness required for trade dress registration. Once registered, trade dress protection can last for the life of the product, while design patents have a limited term of fourteen years from issuance.

For products deserving of utility patent protection, design patents can also be used in conjunction with utility patents to protect both ornamental and functional aspects of the product. Copyrights can also be used to protect various aspects of toys and games.


For the reasons discussed above, toy and game innovators should view design patents as an important part of their intellectual property strategy. As a caveat, United States patent laws require that design patents (such as utility patents) be filed within one year of certain public disclosures of the invention, otherwise the inventor does not. he is not allowed to obtain patent rights on the disclosed invention. Also, many foreign countries require that the patent application be filed before any public disclosure, otherwise the patent rights in those foreign countries will be prohibited. Thus, be sure to file design patents and utility patents before the new product is disclosed outside your company.

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