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     Patently-O, a leading patent law blog written by Professor Dennis Crouch from the University of Missouri, has recently posted the results of two studies regarding design patents.  Taken together, it appears that design patents are becoming both easier and quicker to obtain than ever before. 

                A design patent protects the ornamental characteristics of a functional item.  This is similar to trade dress, however the elements of infringement are different.  In order for a court to find trade dress infringement, there must be likelihood of confusion.  In other words, an average consumer must mistake the design and markings of one company for another.  By contrast, a design patent is infringed if something looks, to the ordinary observer, like the patented object.  A design patent is also different from the more common utility patent in a number of important ways.  First, there are no maintenance fees for a design patent.  After the patent issues, the patentee does not need to pay extra to keep the patent alive.  Additionally, a design patent lasts 14 years from the date of issuance.  Finally, a design patent is generally much easier to draft than a utility patent, and the majority of the cost of drafting is usually draftsperson fees for quality drawings.

                The first study performed by Professor Crouch involved the average pendency of a design patent application.  In other words, how many months elapsed between filing and issuance?  He found that the average pendency has been decreasing sharply.  Recently, almost half of the design patents issued have been issued within a year of their filing date.  Almost all have been issued within two years of their filing date.  The reason for this, this author suspects, has to do with the second study by Prof. Crouch.  He found that a whopping 81.6% of filed design patents issue with no rejections from the USPTO.  In other words, the design patent is filed and issues with no further arguments required.  Of the rejections, the vast majority (71.6%) involve informalities in the actual application.  These statistics do not take into account the number of design patents that are filed and later abandoned for one reason or another, but Prof. Crouch points out that the USPTO does release those statistics separately and only about 10% of design patents are abandoned for one reason or another.  Therefore, a well-drafted filed design patent has a little under a 75% chance of simply issuing. 

Combined with the relatively low cost of filing, which is further halved for certain small inventors, a design patent begins to look like a very attractive prospect for a company that desires to protect the look and feel of their product to the maximum extent possible.  If you are interested in discussing further how a design patent may be useful for your products, please do not hesitate to contact us here at Swider Medeiros Haver LLP.  We would be happy to discuss the ramifications with you.