Expedited Patent Issuance

Starting May 13, 2025, the USPTO has begun accelerating the issuance of patents after the issue fee has been paid. Specifically, the duration between the Issue Notification and the Issue Date will be reduced to approximately two weeks instead of the current three-week time period. The USPTO has noted that it has been able to implement this improvement in view of its technology modernization efforts. More information on this update can be found at the USPTO’s website here.

Continue Reading USPTO Expediting Design Patent Issuances and De-Expediting Design Examination

In 2024, design patent law encountered a couple of major changes: the implementation of a new design patent bar, and the upending of decades of obviousness law under 35 U.S.C. § 103 in view of the en banc United States Court of Appeals for the Federal Circuit (CAFC)’s decision in LKQ Corporation v. GM Global Technology Operations LLC, which we discussed here. Looking back at last year’s design patent issuance statistics, we now take the time to determine whether, if at all, the issuance numbers of U.S. design patents were impacted by these changes. 

Continue Reading Recap of 2024 U.S. Design Patent Drama: Here’s What We Know Now

“Aber ist es Kunst?”

That question—“But is it art?”—was before the German Bundesgerichtshof (“BGH”), or Federal Court of Justice, in a recent proceeding involving the well-known Birkenstock sandal design. Birkenstock Group (“Birkenstock”) had sought relief against three rival sandal makers, asserting that the defendants’ products infringed Birkenstock’s copyright on its sandal design. Exemplary designs at issue are shown below.

Continue Reading German Birkenstock Decision Shows the Limits of Copyright Protection for Functional Designs

Design patents in the U.S. typically include two types of shading. The first and most common type of shading used in U.S. design patents is opaque shading, which illustrates a non-transparent or non-translucent surface of an article of manufacture. The second type of shading used in U.S. design patents is oblique shading, which illustrates a transparent or translucent surface of an article of manufacture. Specifically, MPEP § 1503.02(II) states that “[o]blique line shading must be used to show transparent, translucent and highly polished or reflective surfaces, such as a mirror.” Therefore, if the article of manufacture is intended to have some level of transparency or translucency, the USPTO requires that oblique shading be used. 

Continue Reading Best Practices for Protecting Transparent and Translucent Designs

When there are fewer design elements in a design claim or when the individual elements of the design seem commonplace in isolation, it can be easy to overlook the inventive effort that went into developing a design. Rather than looking to the overall visual impression that those design elements provide as a whole, one can make the fatal error of ignoring a majority or the entirety of the design, considering it to be no more than an “abstract idea.”

Continue Reading Sometimes Less is More: Patentability of “Simple” Designs

Like many patent owners or aspiring patent owners, at some point you may have found yourself in a situation where design protection was needed, but all you had was narrow utility protection. Perhaps a decision had been made years ago to forgo a design filing in favor of a utility application, and in retrospect, that decision was a costly mistake. Sure, your disclosure may have been robust and your drawings comprehensive, but the available claim scope is not as broad as you would like, and now a competitor is selling a product that looks a lot like your product but does not infringe any of your utility claims.

Continue Reading While There is an Active Utility Application, There is Design Hope

The Manual of Patent Examining Procedure (“MPEP”) is the examination manual used internally at the United States Patent & Trademark Office (“USPTO”) to guide examiners in the process of examining patent applications. In practice, patent applicants frequently rely on the contents of the MPEP during patent prosecution to guide their arguments and hold examiners accountable to their legal obligations during patent examination.

Continue Reading Recent Examination Manual Update Includes Guidance on Protection of Computer-Generated Designs

While obtaining a design patent is often quicker than obtaining a utility patent, current design patent application pendency is often still a lengthy period of time. Based on data released by the USPTO in July 2024 and shown below, over the previous year the average length of time from a design application filing date to the date that a first Office action was mailed was 16.7 months (Figure 1, below). In the month of July 2024, that average had crept up to 17.1 months. In the consumer product space especially, given the sometimes short shelf-life of a product, such a long examination pendency may not be suitable for a design patent applicant.

Continue Reading Rocket Docket: Fast Track to Examination

As commerce moves more and more online, companies are facing unique challenges with respect to protecting their products, and the low cost of entry for online sellers has contributed to proliferations of knock-off and potentially counterfeit products being sold. This is particularly true when the product being sold is a simple disposable or replaceable product, such as a refill cartridge, a duster refill or a coffee pod.

Continue Reading Indispensable Strategies for Protecting Disposable Products