By Megan Redmond

Design patents are no longer the poor cousin in the world of patents. Today they’re taking their seat at the table with utility patents, copyrights, and trademarks as part of an overall intellectual property protection strategy.

Here is some important context behind the rise in design patent filings and how they can provide another layer of protection.

Design patent filings increasing

In the ten years since Apple’s $500 million verdict against Samsung for infringing on their iPhone design patent, the increase in design patent filings tripled. And in 2021, U.S. design patent filings jumped by about 17% to 54,201 design patents.

Most design patents are filed on graphical user interfaces and products. Given that the U.S. shifted to a first-to-file system, filing early is key to protecting the appearance of your company’s graphical user interfaces and products. Therefore, a design patent could be an essential part of your intellectual property protection plan before releasing a product or interface with a unique appearance that could become a target for counterfeiters seeking to capitalize on your investment in research and development. The U.S. design patent trend is consistent with the increase in design patents filed globally.

The role of design patents

Design patents serve a crucial role in protecting your company’s products and graphical user interfaces against competitors. This allows companies to distinguish themselves, not just on the technology front but also on the design front.

Design patents ensure competitors cannot use your core designs in the marketplace for products. And they can also protect against counterfeit product sellers regardless of whether the counterfeiter copies trademarks. And some counterfeit product sellers are even filing their design patents using original product designs with minor tweaks. In sum, design patents protect graphical user interfaces and products that are core to a company’s branding and aesthetics. This protection is critical to protect against competitors and copycats alike.

Advantages of Design Patents over Utility Patents

Design patents are less expensive, quicker to obtain and harder to invalidate than utility patents:

  • The filing fees on design patents are 30-40% less than on utility patents.
  • Design patents issue in about 20 months, as opposed to utility patents that issue in about 30 months.
  • Inter Partes Review Proceedings have been very effective at invalidating utility patents, with a rate of about 65% of petitions filed being instituted. In contrast, design patents petitions are only instituted about 45% of the time.

As a bonus, design patents provide good remedies in District Court. District Courts grant preliminary injunctions more frequently in design patent cases than utility patent cases. And in design patent cases, patent owners can obtain a reasonable royalty or even total profits from an infringer, making it a costly threat for infringers.

At the core, design patents protect the design of websites and graphic user interfaces from competitors seeking to confuse consumers with designs that mimic a popular product or service. In today’s marketplace, failing to file for design patents can have strong consequences as competitors can use a similar design and seek design patent protection. If this happens, you may need to make expensive and cumbersome changes to your product, or, even worse, you could be excluded entirely from using your design.