Design Patents are Still Relatively Quick

The chart below is a histogram of prosecution pendency for design patents issued during the past three years. As the chart shows, the bulk of design patents are issued within 12-months of the filing date and only a handful take more than three years to issue. As I have written before, most design patents are issued without substantive rejection or amendment.

Nike's Design Patent No. D659,988 issued last year after less than three-months in prosecution as part of the design patent "rocket docket."

Toyota's Design patent No. D674327.

10 thoughts on “Design Patents are Still Relatively Quick

  1. While this should not be taken as legal advise, the answer to your question is:
    It depends.

    It depends on how much money you have.
    It depends on how much you want to protect (the invention? the business behind the invention – which may entail different IP, such as trademarks)
    It depends on what is the invention. Is it the material of the cloth? Is it the configuration of old material? Is it a method of fabricating? Of using?
    It depends on market conditions (is this a crowded and active market? What are your competitors doing now? How will they react to your invention?

    These are some of the questions you should have already thought about before you seek actual legal advise (again, which this is not).

    Good luck sir.

  2. If a person invented a new type of face clothe ( wash clothe )
    what type of patent would be needed. This is a real question and not intended to be humorous.

  3. McCracken: They are indeed. You might be interested in a formal study/paper that concluded that styling is the #1 factor affecting a consumer’s choice of automobile – not a minor part of our economy. And then apply the same neuropsychology to all consumer products . . . . Data shows that design drives growth and builds goodwill, and even more so when utility is a commodity.

  4. Re: “Obviously not FIFO system ..”
    I have come to the conclusion after many years that some examiners and their PTO managers consider “FIFO” to be just a name for a French poodle, rather than the proper order in which patent applications should normally be examined from their ORIGINAL filing dates.

  5. Design patents have an important place in any portfolio and should not be underestimated. Prior art is not just other designs but utility patents. A design patent will not be granted if there is a drawing in a utility patent that similar to the “ordinary observer.” We have just gotten several design applications granted in under 6 months, but we have some over 12 months that have not been examined. Obviously not FIFO system because the one under 6 months is just another embodiment of the one that is now close to 14 months pendency.

  6. We should examine utility applications the same way, formalities, claim and application structure and ONLY novelty. Let the marketplace and courts sort out the rest .
    Michael E. Zall

  7. Re: prior art is rarely cited against design patent applications because they are: “..by their nature, very narrowly claimed”
    Yes indeed, so says design patent case law. But how does that requisitely equate to the “ordinary observer” claim breadth used for infringement determinations of design patents, and pass the “nose of wax” test?

  8. That’s not accurate. Design patent applications are in fact examined. An examiner is assigned to every case, and in every case they do in fact conduct a search of the prior art. They issue relatively quickly because they are relatively few in number, and because they are by their nature very narrowly claimed.

  9. Interesting….

    Complaining that patents are granted too quickly and yet we have a massive backlog problem in the utility sector.

    Must have been that the scourge of design patent litigation and all those design patent trolls out there that dissuaded the intelligentsia from investigating that possible solution.

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