by Dennis Crouch
The USPTO is officially establishing a separate design patent practitioner bar with its final rule published on November 16, 2023 and effective January 2, 2024. This is an historic change that opens the door to becoming a patent practitioner to a much wider audience and will likely lend itself to further growth in this specialty area. After proposing the idea in May 2023 and receiving positive feedback, the USPTO implemented the design patent practitioner bar through its rulemaking authority under 35 U.S.C. 2(b)(2).
Currently, a single patent bar governs registration for anyone seeking to practice before the USPTO in utility, plant, and design patent matters. Applicants must meet the fairly high scientific and technical requirements before being permitted to join the bar. Of course, ornamental design is often a different creature from utility patents. Good design is now very much ensconced within the formal education — but outside of traditional engineering and science programs. So, although these designers are often design patent inventors, they have been prohibited from becoming patent practitioners. The new rules introduces an additional path focused on visual arts credentials. To qualify, applicants need a bachelor’s, master’s, or doctoral degree in one of the following fields or an equivalent:
- Industrial design
- Product design
- Applied arts
- Graphic design
- Fine/studio arts
- Art teacher education
These align with degrees the USPTO currently accepts for design patent examiner roles. Equivalent design field degrees will also be accepted on a case-by-case basis.
The setup here is that the design patent practitioner bar will be separate and distinct from the patent bar.
- Regular Patent Bar: Can continue to prepare and prosecute utility, design, and plant patents.
- Design Patent Bar: Can only prepare and prosecute design patents.
Design patent bar applicants will take take and pass the existing registration exam. This critical step demonstrates knowledge of patent laws, rules, and procedures. All applicants also undergo a moral character evaluation.
I like what the USPTO has done here. I love good design, and I believe that design patent attorneys and agents can be helpful in that process in a way that circles back to increase innovation in the field.