Design Patent Infringement: Everything You Need to Know

Design patents are a very important part of the process of creating products. However, they are often misunderstood by the very businesses that file them. Worse yet, they are often infringed on due to improper filing methods that leave the business liable to legal action.

Getting to know the laws surrounding design patents is crucial if your business deals with visual art and design. If you want to know more about how to handle the legal aspect of creating a design patent, here are some of the basic principles.

1. What is a design patent?

When people think of patents, the first thing that usually comes to mind is an idea. A patent exists for some kind of idea that can be turned into an invention or useful service. However, this isn’t true for every kind of patent. Some of them have very specialized roles that help businesses protect their intellectual property. Design patents are one specific example of a very useful patent.

Design patents exist to protect the ornamental designs of something that is manufactured. The manufactured article needs several parts to make up an entire whole which is then used by the business in one way or another. The protections extend to the parts that make up the article and its design.

Most design patents relate to the shape and surface of the item or part in question. To put it in simpler terms: you get to patent the illustration of this item. If it looks exactly the same, you can roughly guess that it works in much the same way.

2.  How is it distinct from a utility patent?

If you aren’t very familiar with different types of patents, the distinction between the two of them might be a bit difficult. A design patent and a utility patent serve the same purpose, but they relate to different aspects of an item. The design patent doesn’t go into the workings of the part so much as it does the simple design of it.

For a utility patent, the look and feel of the item don’t matter at all. It’s all about how you use it. A utility patent needs to examine the inner workings of more complex parts which might have their mechanisms obscured. Even if they aren’t obscured, having an identical function will still infringe on another patent.

3.  What can you create a design patent for?

Once you’re familiar with how design patents operate, you need to get to know the things that they’re used for. What can you put under a design patent? The answer isn’t all that special or extraordinary. Items like clothing, shoes, packaging, and paper are some notable examples. They often have very recognizable shapes which can be characteristic for a brand. Their look is easy to patent.

On the other hand, some items have more specific uses. Their design is important for their function more so than their looks. Vehicles, fasteners, mechanical components, and tires fall under the scope of design patents. Their design is integral for function and this is why they are often successfully patented. Graphical user interface designs are an unconventional, but often patented type of design. Businesses put a lot of effort and funds into creating the perfect interactive user interface, which is why it’s in their best interest to protect it from copycats.

4.  How do you tell if your patent was infringed on?

The whole point of patents is to protect your intellectual property from being stolen. However, not every kind of patent makes it easy to tell if another person or business has taken advantage of it. Consider utility patents as an example. It’s rather easy to tell if a mechanism is an exact copy of another mechanism, especially if they work in the exact same way. Gears, movements, and mechanisms are easily noticeable attributes that can’t really be forged without taking great inspiration from an original.

Design patents can be a bit of a problematic process in this regard. How do you tell if someone has infringed on a design patent? The visual aspect of the item or product can be similar to another one, while still retaining a unique function. If there’s a limited number of shapes in the world, can you really fault another business from making something similar? You can, but only if it’s a bit too similar to the original design.

An infringing product can’t just look vaguely similar to an original patent. It has to be “substantially the same” as the patent for it to be considered a copy. This is determined with the help of an “ordinary observer” test. The concept is pretty straightforward. If you put the two items in question right next to each other, would the average layperson see them as being basically the same thing? In some cases, someone versed in the business might have to take a look and give their own testimony. Design patent infringement doesn’t have to be proven beyond a reasonable doubt.

5.  Designing a strong patent

When a business creates a distinct item or product that they wish to patent, they need to make sure that they have ground to file a patent. This requires some thorough research before making any submissions to the patent office. How do you know if your patent is truly unique and useful for its intended purposes?

For regular patents that deal with mechanisms and ideas, it’s relatively easy to determine whether or not someone has come up with the same idea before. You take a look at other patents that have been filed in the same business market and compare it to your patent idea. However, the design of an item is hard to explain. You need a visual aid to make sure that your patent design is truly unique. Legal professionals can assist you in making sure that you don’t delve too far into infringing territory when filing for your own design patent.

6.  Dealing with prior art

Every art form takes inspiration from previous pieces of art. It’s nearly impossible to find something that is truly new and unique. This is why there is a bit of leeway when it comes to copyrighting things like music and visual art. You can’t copyright circles, no more than you can copyright a specific rhythm that is used in a drum pattern. Because of this, the concept of prior art needs to be taken into account when filing a design patent.

A strong design patent will look absolutely nothing like any prior art that someone can find. However, there are very few truly strong patterns out there. When there are millions of different inventors and businesses working to create something unique, it’s inevitable that there will be some overlap here and there. It’s up to a patent court to find out whether the design is infringing on another patent or piece of the prior art.

7.  Using an expired patent

You might be wondering what happens to a design when a patent expires. This is bad news for the business that filed it, as the item in question is no longer protected from infringement. In most cases, the business will have moved on to different products and items to offset this change. However, what can other businesses gain from this kind of patent expiration?

Is it possible to use the exact same design if the patent expired? The answer is a bit more complex than you might think. Obviously, an expired patent can’t be litigated against. If you use the design for your own business, you don’t have to worry about the previous owners of the patent suing you for infringement. However, it’s never as simple as this.

In many cases, the expired patent will still be part of another patent that includes the item in question. This means that using the design will infringe on an entirely different patent, making you liable for taking it. If other live patents cover different parts or combinations that are found in your new patent, it’s very likely going to be pronounced infringement.

8.  Accurate diagrams

A design patent must be described and drawn to a very accurate degree for it to be filed properly. This means creating a diagram which features every important visual element of the item or product. If the design is unclear or drawn improperly, competitors can use loopholes to create and distribute the same product.

There are many ways to submit the visual aspects of your design. The USPTO prefers that businesses send in drawings alongside diagrams which demonstrate every side of the object. Black and white ink is preferable, but there’s nothing stopping you from using photography instead. Photographs are usually accepted due to difficulties drawing the design on paper.

The drawings or photographs need to be described and properly numbered based on their elements. This allows for the design to be pieced together from the description and individual elements that make it up. If the patent necessitates colour, coloured drawings and photographs can be submitted. This requires sending a special request to the patent office, which is why this must be done pronto.

9.  Distinguishing features

Copyright law needs to take into account the perspective of the average consumer. If they are unable to tell the difference between a patent and an alleged infringement, there may be grounds for a legal case.

If you find yourself in a patent infringement dispute, your legal team should take a look at the distinguishing features of the infringing design. If there are any key features that give the design a unique quality, it can be argued that it’s not infringement. If such a feature is found, it might necessitate further examination.

A very important thing to consider is that not every feature lets the alleged infringing party off the hook. If the claimed distinguishing feature is present in a similar form on the original patent, this can only bolster the infringement case. The case might require a specialist attorney for patent infringement to determine whether or not the designs are similar enough to warrant further litigation.

10. Calculating the critical date

It’s not uncommon for two similar designs to end up filed for a patent with a small window of time between them. This leads to a myriad of problems for the party that has filed last. In these scenarios, it’s important to know how patent timing works.

Not all hope is lost if your design is similar to a recently submitted patent. In most cases, a business that has filed for a patent will have already begun sales before the patent process is even finished. This is because the key component that is the subject of the patent might be a very important part of a bigger mechanism or process.

On the other hand, the patent process can take weeks or months, which means that the business would otherwise have to wait before implementing it. This can cost them both time and money. Not to mention, someone else could take advantage of the idea during this time. This is why provisional patents are granted and businesses can manufacture and distribute these designs without fear of losing them to a competitor.

If the allegedly infringing design was previously sold or used before the finished patent’s “critical date”, this can absolve the second business from patent infringement liability. This date depends on a multitude of factors and a business that wishes to protect its assets need to be well-aware of the exact date.


Design patents aren’t as complicated as they might seem at first. Many of the laws that surround them were created to benefit creators and innovators, while still protecting businesses that wish to keep their patents safe. As long as you understand the underlying mechanisms for creating and protecting your design patent, you shouldn’t have any issues creating your product and protecting it from infringement. Make sure you take a look at some of these pointers before you decide to file for a design patent, it could save you a lot of legal trouble and headaches down the road.

Lucas is a business consultant with a passion for writing. Doing his research, exploring and writing are his favorite things to do. Besides that, he loves playing his guitar, hiking and traveling.

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