Design Patent Term: 3½, 7, 14, and now 15 years?

New design patents have a term of 15 years from patent issuance — that is a 1 year bump from the 14 year term familiar to many patent attorneys.  The straight 14-year term took hold in 1982.  In the years leading up to 1982, most design patents also had a 14 year term, but applicants had the option of instead obtaining a term of 7 years or 3½ years at a lower fee.  In 1980, all design patents had an application fee of $20, and the issuance fee was $10, $20, or $30, depending upon whether the applicant wanted 3½, 7, or 14 years of patent term.  In 1930, the prices were $10, $15, and $20.

The chart below is a bit hard to read, but it basically shows the percentage of design patents associated with each of the three potential patent terms. The basic result is that in the 1910s, folks were obtaining all three sizes at roughly equivalent rates; By 1940, the short 3½ year term had become most popular; Then, by the 1970s the overwhelming majority of applicants were paying the extra $10 for 14 years.

This is part of a larger project that I’m working through on design patents, and I’ll be able to fill-in the gaps of the chart at a later date.  I’m downloading the TIFF images for these patents; running through OCR  software and then parsing that text output.  It is a bit of a process, and I probably need a multithreaded approach. 

The original design patent Act of 1840 included a 7 year term. I believe it was the the 1861 Act that added the spread term, and included a respective cost of  $10, $15, and $30 with an optional seven additional years.

18 thoughts on “Design Patent Term: 3½, 7, 14, and now 15 years?

  1. 7

    I’ll be curious Dennis if there was actually a spike in design patent filings during the “patent shark” era of the late 1800s where unscrupulous attorneys secured design patents on basic shapes and then scoured rural farm areas demanding license payments. The farmers had no ability to travel to far away federal court houses if they were sued, so many paid for a license.

    link to ipwatchdog.com

    1. 7.1

      Interesting historical article Sam. There was also a lot of lightning rod patent assertion in that time frame, leading to some state legislation.

  2. 6

    Ala’ “olden days” variable design patent fees . . . could we pay more to have our (utility) patents exempt from the unconstitutional Death Squad PTAB?

    From the Death Squad CAFC?

    How ’bout from the Death Squad SCOTUS?

  3. 5

    Besides the design patent term of 15 years from issuance* the current average pendency of design applications from filing is 20.4 months [per the “PTO Dashboard”]. That makes for an average of 16.7 years from filing.
    The allowance rate is 84.8%. That is not surprising in view of the prior study by Dennis a few years ago showing that design applications rarely get any 102 or 103 prior art rejections, rather, usually, just formalities objections. [The opposite of utility application examinations, even though the prior art statutes are the same for both.]

    *14 years if issued before 2005, but those are presumably all expired.

    1. 5.1

      The so-called “formalities objections” are about the drawings, i.e., the claims, and thus are akin to claim rejections in a utility patent. And the reason there are so few 102 and 103 rejections is that a new design is rarely anticipated or obvious over the prior art, because when a designer sits down to create a new design, care is taken to make it different from what’s out there.

      1. 5.1.1

        I’m not seeing that, Perry.

        Aside from the obvious problems that artistic expression should not be shoe-horned into the utility system, I tend to think that examination simply has not been a fraction as rigorous (nor the stakes as high — for a typical case, outliers notwithstanding) as the Utility cases.

        1. 5.1.1.1

          With all due respect, anon, you’re wrong. Examination, especially recently, is rigorous, detailed, and good. The design examiners use important cases like Seaway (the worst decision ever by the Federal Circuit) and Owens, to reject claims and make “formalities objections”. If you had any experience in design patent prosecution, you’d know that.

          1. 5.1.1.1.1

            Perry, I may well defer to your view on this – our design patent practice is fairly minimal, and we always seem to obtain first action allowances, so they seem to be being waved on through.

            1. 5.1.1.1.1.1

              May I suggest, anon, that your claims were too narrow to be rejected… if you want rejections, write some broad claims (hint: massive use of broken lines…)

              1. 5.1.1.1.1.1.1

                Perry, design patents can get issued even if almost entirely drawn in broken lines, as clearly demonstrated by the two design patents finally properly rejected under 103 by the Federal Circuit in reversing a PTAB decision in Campbell Soup Company v. Gamon Plus, Inc., Fed. Cir. No. 20-2344, 08/19/2021.

                1. Yes, Paul, you’re right. Congratulations to the attorney who drafted and prosecuted those two patents (ahem! ;). He must have known the prior art well…

      2. 5.1.2

        Re: “because when a designer sits down to create a new design, care is taken to make it different from what’s out there.”
        Perry, if you mean avoiding copying a Competitor’s Product shape and ornamentation, yes, and there are other good legal reasons for doing that. But in many years of practice I have never known a design patent applicant to run a normal prior art search for the novelty or unobviousness of the design features vis a vis any other products or design patents with similar shapes or ornamentations. [Not that the design examiner would be likely to apply it anyway.]

        1. 5.1.2.1

          Paul, I’ve had the same experience as you re: searching, but I believe there’s a good reason for that. The cost of a pre-ex search can be about the same as an application, so why not just file? The same is not true for utility patents. Also, as I said, most legitimate designs are original, i.e., neither antipated nor obvious in view of the prior art, so why search? Let the examiner do it. Very often, the applicant knows of the closest prior art and submits it in an IDS. Of course, clients do clearance searches which is a very different animal than a pre-ex.

  4. 4

    The big bargain about design patents is that the term is measured from the issue date rather than the filing date.

  5. 3

    Comments — disappeared?

    1. 2.1

      You shoulda seen the “political juice” cartoon touching on this subject back awhile back. He took them down off youtube now but someone put this episode back up it looks like just recently. If you watch quick you might catch it before it gets taken down.

      link to youtube.com

      Bottom line, when you make the courts co-equal with the other two they eventually overwhelm the legislature’s supremacy (though interpretation and unwritten rules that are supposedly just in the text already). At least that seems to be what happened.

  6. 1

    Regardless of term, design patents being squeezed into the utility patent world remains a huge mistake.

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