Current Design Patent Statistics at the U.S. Patent Office (April–May 2021)
Design patent applications are more popular than ever and should be considered when formulating a new product design, commercialization, or marketing strategy because design patent applications easy to budget for, more-quickly examined and more likely to be granted by the Patent Office, and design patents are proven winners in district court litigation. Design patents are a great option for protecting your inventive designs.
WHAT IS A DESIGN PATENT?
A design patent protects any new, original, and ornamental design for an article of manufacture. The term of a design patent lasts 15 years from the date of the grant. For more basic information about design patents, click here.
WHY SHOULD I CONSIDER FILING A DESIGN PATENT APPLICATION?
Design patents are often used to provide businesses with a cost-effective way to supplement the protection for an invention provided by a utility patent; or, to protect a design outright when the underlying article of manufacture (invention) is unlikely to qualify for a utility patent. Whether to file a design patent application for one of those reasons is generally an easy business decision because the cost of having a design patent application prepared and filed is very modest relative to the cost associated with utility patent applications (e.g., design applications cost about $2,000 compared to about $6,000 for a utility patent for a mechanical invention).
Additionally, the chances of obtaining a design patent from the Patent Office are significantly higher than the chances of obtaining a utility patent. Recent statistics published by the Patent Office show that design patent applications have an allowance rate of over 85%, as shown in the graph to the right.
The allowance rate is calculated by dividing the number of design applications allowed in a fiscal year by the number of design applications disposed in the fiscal year.
For comparison, current statistics published by the Patent Office show that utility patent applications have an allowance rate of about 58% when RCE filings are accounted for and an allowance rate of 76% when RCE filings are excluded, as shown in the graph below.
The allowance rate is calculated by dividing the number of applications allowed in a fiscal year by the number of applications disposed in the fiscal year. The allowance rate “including RCEs” includes the “abandonments” (a type of disposal) for requests for continued examination (RCEs) in the disposals. The allowance rate “without RCEs” does not include the abandonments for RCEs in the disposals.
Moreover, design patents have proven to be very enforceable against alleged infringers in U.S. District Courts. In fact, design patents have outperformed utility patents in patent litigation in terms of obtaining infringement judgments and withstanding validity challenges in court.
Since 1990, design patent owners have succeeded in proving infringement against defendants in more than 53% of the district court cases (i.e., a determination that the defendant’s product infringed the asserted patent). By comparison, utility patent owners were able to successfully prove infringement about 50% of the time. And design patent owners have withstood invalidity attacks by such defendants in 82% of the cases (i.e., a determination that the patent was not invalid in view of the asserted prior art), whereas utility patents withstood such attacks only 59% of the time.
Without question, design patents are a valuable asset and should be considered for most new products.
Current Statistics for design applications
at the Patent Office
Not only are design patent applications more likely to be allowed compared to utility patents, the prosecution process is also faster. On average, an application for design patent is examined within 15 months of the filing date, as shown below.
By contrast, an Office action for a utility application is not issued until an average of about 17 months.
The Patent Office receives between 15,000 to 25,000 design patent application filings per month. And, as of April 2021, the Office reports a backlog of over 66,000 design applications waiting examination, which is only about a tenth of the 625,000 utility patent applications in the backlog waiting examination:
In a hurry? If 15 months is too long to wait to hear back from the Patent Office, then expedited examination should be considered. The fee for the expedited service for a micro entity is only $400, for a small entity $800, and for a large entity $1,600. Those fees result in a first Office action in less than 2 months, as shown below:
The data discussed above is available from the Patent Office’s dashboard, which provides a snapshot of how the agency is handling (e.g., examining) an influx of patent applications. This data can be useful to companies that are planning to file a design patent application or launch a new product in the near future.
At Nolan IP Law, we love working on design patent applications. If you are developing a new design, or have recently launched a new product, then it is high time for you to schedule a free consultation with Nolan IP Law to discuss whether filing a patent application makes sense for you.