The USPTO conducts formal and substantive examinations on design patent applications. The examination mainly includes:
- Review drawings and disclosure for completeness and compare application subject matter to prior art.
- Prior art includes issued patents and any published materials.
The grounds for the USPTO to reject a design patent application include uncertainty, impracticability, and whether the design exists in the prior art (a single reference or a combination of references). The USPTO examiner will issue an examination opinion on the defects of the patent application, pointing out any technical or substantial defects that affect patentability. The examination opinion may also include the examiner's suggestions for amendments to the application to make it conform to the form of the patent application. If the required subject matter is found to be patentable, the applicant will obtain the design patent right after paying the authorization fee.
After a final rejection or two rejections, the applicant may appeal to the Patent Trial and Appeal Board (PTAB). If the applicant is not satisfied with the PTAB's decision, the applicant may file a civil lawsuit against the USPTO in the United States District Court for the Eastern District of Virginia; or the applicant may appeal the Patent Reexamination Board's decision to the United States Court of Appeals for the Federal Circuit.
Anyone can file an opposition to a granted design patent, but it is not possible to file an opposition to a pending design patent application. Although the USPTO does not have a formal procedure for filing an opposition to a pending design patent application, any third party submits a granted or published patent application, patent, or other printed publication as a third-party public comment for consideration by the USPTO examiner. However, in practice, since design patent applications are not public, the nature of the pending design is unknown, so this procedure is rarely used for pending design patent applications.
According to USPTO statistics, as of July 2024, the average authorization time for US design patent applications was 22.6 months.
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