Once a distinctive product design enters the market, it is possible to replicate it. This possibility is why you must give considerable thought to patent protection for the design.
A design patent legally protects the new, novel, artistic design of a manufactured item. 35 U.S.C. § 171 governs the USPTO’s authority to confer a design patent on a new, unique design. The term of protection extends to 15 years, counting from the date of grant, for design applications filed pursuant to 35 U.S.C. § 173, as amended, on or after 13 May 2015.
Design patents are seeing steady use by U.S. companies and inventors alike. Design patent filings have climbed for several years running, and 2024 set a new annual record for design patent issuances, with roughly a 40% jump over 2021 levels. That kind of sustained growth is why getting the filing process right is so important.
Let’s take a look at the 4 steps to file your design patent so you can confidently undergo the process and obtain the results you want.
What a Design Patent Actually Covers, and What It Does Not
A design patent protects only the ornamental, visual aspect of a product. It doesn’t cover how the product works. So if the feature you’re trying to protect is functional, you need a utility patent rather than a design patent.
The USPTO refers to design patents as those that protect shape, configuration, and surface ornamentation, but only in the form they take on a specific article of manufacture. If a design is kept abstract and not connected to any actual manufactured product, it usually won’t qualify for design patent protection.
A design must meet several requirements to qualify for patent protection. The design must be original and should not in itself merely possess functional value, which is not decisive but contributes to the attainment of said goals. Keep in mind that meeting all these conditions does not guarantee automatic protection. If any condition is not met, the invention will not be patentable.
Getting these calls right from the outset is where experienced counsel shows its worth. Denver trademark attorney Steve Zemanick has expertise in copyright, design patent, and intellectual property transactions. He is fully prepared to advocate actively when disputes arise. He is a skilled negotiator of favorable outcomes for clients.
Step 1: Conduct a Prior Art Search Before You File
Filing without searching is one of the more costly slip-ups a designer can make. A prior art search isn’t a little formality. It’s the step that tells you if your design is really novel before you start spending money on an application.
The USPTO’s Patent Full-Text and Image Database gives free access to issued patents and published applications. Google Patents offers a more easily browsable interface for visual patent searches. Search by visual similarity, not just keywords, since design patents are mainly about images, and prior art often turns up in the drawings, not in the text descriptions.
For infringement, courts apply the ordinary-observer test articulated by the Federal Circuit in Egyptian Goddess, Inc. v. Swisa, Inc., asking whether an ordinary observer would find the patented and accused designs substantially the same. This exam is based on an infringement of a design patent, but it does not affect the validity of that patent. The patentability of design depends solely on the patent provisions, mainly novelty and non-obviousness.
If the search finds a conflict, then redesign before you file. Make the case that your design is different during the exam, but doing so takes longer and usually costs more than adjusting the design ahead of time.
Step 2: Prepare Drawings That Carry the Legal Weight of Your Application
In design patents, drawings are considered to make the claim. The USPTO will only accept one claim for the design patent, and the claim should refer to the pictures directly. Every stroke, every literal outline, and every dash is included in the patent protection. The examiner must be able to replicate the item in 3D only by looking at 2D imagery. For this reason, sloppy drawings can sink an otherwise solid application, even when everything else looks good.
The drawings should contain views from the front, back, left, right, top, bottom, and also a perspective view. Use surface shading for the 3D body. Show contours and then rely on broken lines to indicate the surrounding structure or any parts of the article that aren’t really part of the claimed design. Keep the scale uniform throughout all views.
The USPTO’s Guide to Filing a Design Patent Application lays out the drawing requirements under 37 C.F.R. § 1.84. If the drawings don’t clearly show the claimed design, that is a common reason for rejection during examination. You do not have to hire a professional patent illustrator, but the drawings must meet the USPTO’s technical and disclosure requirements. For complex designs, professional assistance can reduce the risk of inconsistencies or drawing-related objections.
Step 3: Complete and Submit the Application Through Patent Center
The application itself is shorter than a utility patent application. It has the drawings, a preamble naming the inventor and the article of manufacture, a quick take on each view, and only one claim. A declaration by the inventor alongside the payment of the required fees makes up the other requirements of the application.
Filing fees matter more in 2025 and 2026 than they did earlier. Starting January 19, 2025, the USPTO increased the design patent filing and issue fees. Filing fees are up about 27 percent, and the issue fees jumped 76 percent The combined price for filing, search, examination, and issue fees is now around $2,600 for large entities. For small and micro-entity parties, discounts of 60% and 80% can be applied to many of these expenses.
Applicants can file design applications electronically through the Patent Center, and the USPTO also permits paper filing. For design applications, the non-electronic filing fee that applies to certain utility applications does not apply.
The USPTO eliminated the Rocket Docket expedited-examination procedure for design patents effective August 14, 2025, after suspending it that April. Applicants can still request expedited handling in narrower circumstances, such as a petition to make an application special based on the applicant’s age or health, so a design application isn’t necessarily locked into ordinary-track examination.
Step 4: Respond to the USPTO and Monitor Examination
Design patent applications tend to get examined quicker than utility ones. Once the application enters the process, the USPTO gives it to an examiner to verify formalities and to examine pertinent prior art. If something doesn’t line up, an Office Action shows up. In design examinations, common reasons for office actions are inadequate drawings, objections about using broken lines instead of solid lines, and obviousness rejections based on a combination of earlier designs.
A design patent lawyer can play an important role at the response stage. Typically, responding to an office action costs about $1,000 to $2,500, and the three-month deadline begins on the mailing date of the action. If you overlook the deadline and don’t ask for an extension, the application could be abandoned in short order.
Then, once it’s allowed, a Notice of Allowance is issued, and the issue fee is due within three months. Unlike utility patents, which require ongoing periodic fees to remain valid, design patents do not have maintenance fees.
What Happens After the Patent Issues
A granted design patent gives the holder the ability to stop others from making it, using it, selling it, offering it for sale, or bringing in a product that uses that patented design in the United States. And this enforcement is civil, not criminal. The remedies under 35 U.S.C. §289 allow courts to order disgorgement of the infringer’s total profits tied to the infringing article, offering patent holders an advantage over the standard damages in utility patent cases.
Also, domestic protection ends right at the U.S. border. If you plan to sell the product internationally, it might be wise to explore parallel applications in important markets. WIPO’s Hague System lets you file one international application to obtain industrial design protection across multiple member countries, so you don’t have to handle separate filings for each one.
A design patent is only one layer of intellectual property protection. Depending on the product, trade dress protection for unique product shapes and copyright protection for original artistic components may overlap and apply together. Each category works on its own, and it targets a different aspect of the work.
The 2025 fee increases highlighted the financial stakes like never before in years. If you lose the expedited track, timing and preparation matter even more than before, which is obvious but worth noting. Getting the drawings right, searching before filing, and tracking examination deadlines are the variables a designer can actually control. A design patent is not a guarantee against infringement. It’s an enforceable right, and what happens with that right decides whether the patent provides real protection or just sits like a certificate in a drawer.
