A New Horizon: Design Patent Practitioner Bar Proposed by USPTO

by Dennis Crouch

The United States Patent and Trademark Office has proposed a rule to create a separate design patent practitioner bar. The USPTO is publishing this proposal in the Federal Register on May 16, 2023 (link below to the prepub).

As it stands today, there is a single patent bar that applies to those practicing in patent matters before the USPTO, covering utility, plant, and design patents.  And, even though design patents cover ornamentally, the current rules require that the  design patent practitioner be an engineer or scientist.

The proposed rule aims to establish an additional separate bar for those who only specialize in design patents, ensuring that they have the necessary qualifications, while opening the door to non-engineers.  The proposal appears to not affect those already registered to practice. Existing patent practitioners will continue to practice as before, and new applicants who meet the current criteria, including passing the existing registration exam, will also be permitted to practice in all patent matters, including design patent matters.

In Fall 2022, the USPTO asked for comments on proposals in this direction and received mostly positive comments. Stakeholders acknowledged that the move would encourage broader participation in the patent system.

The proposal would still have a ‘technical’ requirement, typically a degree in one of the following: industrial design, product design, architecture, applied arts, graphic design, fine/studio arts, or art teacher education. The degree requirements here align with the current hiring practices of the USPTO for design patent examiners.  In addition to the degree requirements, applicants would have to meet the other requirements to register for the bar, including taking and passing the current registration examination and passing a moral character evaluation.

The USPTO will accept comments on the proposed rulemaking through August 14, 2023 via the regulations.gov portal.

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18 thoughts on “A New Horizon: Design Patent Practitioner Bar Proposed by USPTO

  1. 6

    I oppose the creation of a separate design patent practitioner bar. I have been a registered patent practitioner for more than 20 years. During that time, I have prepared, filed, and prosecuted many utility and design patent applications for my clients. I have also counseled clients and prospective clients regarding the differences between utility and design patents. As the Office will appreciate, for some products, one type of protection is clearly more appropriate than the other. In other instances, it may be possible and appropriate to pursue both utility and design patent protection for different elements of the same product.

    The key consideration in deciding whether to create a design-patent-specific bar should be “risk to the public”, rather than employment opportunities for a new class of practitioner. A design [only] patent practitioner would necessarily lack the training and experience to provide fully competent counsel concerning the differences between utility and design patent protection. In addition, where the design patent practitioner is also a solo practitioner, or is a member of a design-only patent firm, he or she would likely have a strong bias in favor of pursuing design patent protection that could work against the client’s interest. For many members of the public, a separate design [only] patent bar would create confusion and/or contribute to inefficiencies in securing patent-related services. For all these reasons, I don’t believe a design [only] patent practitioner bar would best serve the public interest.

      1. 6.1.1

        Lol – did you have a point Smelly?

        Perhaps explain how any of that post was “self-serving”…

        Oh wait, you think that the entire patent bar should be opened wide to just any ‘ol lawyer.

        (You are employing the Malcolm projection of drivel there)

        1. 6.1.1.1

          “A design [only] patent practitioner would necessarily lack the training and experience to provide fully competent counsel concerning the differences between utility and design patent protection.”

          “In addition, where the design patent practitioner is also a solo practitioner, or is a member of a design-only patent firm, he or she would likely have a strong bias in favor of pursuing design patent protection that could work against the client’s interest.”

          “For many members of the public, a separate design [only] patent bar would create confusion and/or contribute to inefficiencies in securing patent-related services.”

          Thank goodness we have registered patent attorneys to keep the oh so gullible client base safe from these horrors!

          My eyes about rolled out my head.

          Gimme a break.

          1. 6.1.1.1.1

            Still waiting.

            That you may not consider this of value certainly does not accord universally.

            Are you letting your ego get in the way again?

            1. 6.1.1.1.2.1

              As more typical, Greg’s hidden signaling here is Sprint Left nonsense.

              Fascist curious GOP presidential candidate Vivek Ramaswamy

              Wow. The name calling Racy ism is a-flying.

    1. 4.1

      Market prices are set by the intersection of supply and demand. If the supply of professionals who can represent a design patent applicant increases, then the price for representation should correspondingly decline. The PTO is trying to help design patent applicants to afford representation.

      1. 4.1.1

        More banal Yglesias in the hidden “g”….

        As to the patent aspect, if what Greg say as is true, that would be the epitome of misapplied authority, as the administrative agency of the Executive Branch has zero authority to impose such market conditions.

  2. 2

    >art teacher education

    Is that a separate degree? Or are we just saying “anyone with an undergrad education degree”?

    Not that there is much wrong either way, but if its the latter, might as well abandon the ‘technical’ requirement.

  3. 1

    The requirements for prosecuting design patents include modestly functional eyesight and a high school diploma or GED.

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