Design patents, the often-overlooked sibling to the utility patent application. For an inventor, what does a design patent protect? How does an inventor choose between utility patent or design patent? Is a design patent less valuable than a utility patent? Is a design patent easier to get than a utility patent?
What Does a Design Patent Protect?
A design patent protects how an invention looks whereas a utility patent protects how an invention works.
| Design Patent | Utility Patent |
| Protects the shape of the invention. | Protects how the invention works. |
| Stops someone from making the invention with the same shape. | Stops someone from making the invention that works the same way. |
| Someone may be able to make the invention if they change the shape. | Someone may be able to make the invention if they change how it works. |
| Must show with drawings how the invention is shaped from the outside. | Must explain how the invention works and how it is put together. |
A design patent protects the shape of the invention. It does not protect how the invention works. If you only have a design patent, it means someone can make your invention with a different shape.
A utility patent protects how the invention works. It does not protect how the invention looks. If you only have a utility patent, it means someone can make a product that looks like your invention so long as it doesn’t work the same as your invention.
Choosing Between Design Patent and Utility Patent
You choose between a design patent and utility patent based on whether you want to protect how your invention looks or how it works. To protect how your invention looks, apply for a design patent. To protect how your invention works, apply for a utility patent. To protect both how your invention looks and how your invention works, you must apply for both a design patent and a utility patent.
Design patents and utility patents are complimentary patents in that they work hand in hand. You may need one or the other, or both. If your invention works in a unique way and has a unique look, apply for both utility patent and design patent.
See how Apple has both a utility patent and a design patent on its iPhone. The utility patent protects how the iPhone works and the design patent protects how the iPhone looks. Apple was able to convince the US Patent Office that the iPhone has a unique way of working and was able to earn a utility patent. Further, Apple was able to convince the US Patent Office that the iPhone has a unique look and was able to earn a design patent.
Is a Design Patent Less Valuable than a Utility Patent?
Not necessarily. A patent’s value comes from how many competitors want to copy your invention but cannot copy you because you have a patent. If competitors want to copy the shape of your invention, then a design patent is valuable. At the same time, if competitors want to copy how your invention works, then a utility patent is valuable. It depends on what competitors want to copy. In 2012, a court found that Samsung had infringed on several of Apple’s patents and Apple was awarded over one billion dollars payable by Samsung. One of the patents that Samsung was found to have infringed was design patent D593,087, seen above. It shows that design patents can be just as valuable as utility patents. It just depends on what a competitor wants to copy, how your invention looks or how your invention works, or both.
Is a Design Patent Easier to Get Than a Utility Patent?
Generally, yes. Design patent applications have a higher approval rate than utility patent applications. So long as your design has some nonobvious differences than designs of existing inventions, the US Patent Office is easy to grant you a design patent. Utility patents are generally harder to get when compared to a design patent as the US Patent Office pushes hard for you to convince them that your invention is significantly different than existing inventions.
However, you should not apply for a design patent over a utility patent just because a design patent is easier to get. You must apply for the type of patent, design or utility, based on what you need to protect. For example, if you are trying to stop someone from making a toaster that automatically stops toasting once it detects the bread is a certain shade of brown and you apply for only a design patent, you aren’t protecting the function of your new toaster. With only a design patent, someone can make your toaster by simply changing the toaster’s shape. You must first determine what you need to protect, the function of your invention or the shape or your invention, or both. Then, apply for the appropriate patent, utility patent or design patent, or both, not just the one that is lower cost or easier to get.
