How do you patent a consumer product?
Consumer products are filled with innovation. Even a slight improvement might make a consumer product worthy of a patent. You can choose not to pursue patents, but what would be your backup plan? When competitors start copying your innovative product, what is your fallback strategy to stop them?
Ready to patent your consumer product? Contact US patent attorney Vic Lin at vlin@icaplaw.com or call (949) 223-9623 to explore how we can help you get the right patents for your consumer products.
Design Patent vs. Utility Patent: Appearance or Functionality?
What are the key unique features of your product? Are those features primarily visual or functional? A design patent application would be appropriate for protecting the appearance of your product. If your unique features are functional, consider filing a utility patent application.
Is your consumer product patentable?
A novelty search to see if your consumer product is patentable might make sense in certain situations. Everyone needs to consider the factors on whether or not to do a prior art search. Here are some helpful guidelines:
- design patent applications generally encounter fewer prior art rejections than utility patent applications;
- you have a duty to disclose to the USPTO any relevant prior art references found in a prior art search;
- a USPTO pilot program offers utility patent filers an option to request an AI-assisted prior art search before examination of your application, thereby giving you an opportunity to amend your claims before the patent exmainer reviews them;
- prior art searches generally cover novelty, so there may still be a risk of obviousness rejections even when the novelty search did not uncover any close prior art references;
- would your business gain any business or marketing value by saying Patent Pending even if the outcome of your patent application is uncertain?
What are the total costs and probabilities of getting a patent?
For a small entity (e.g., individual inventor or company fewer than 500 employees), a design patent will cost about $3,000 to $5,000 from start to finish assuming no rejections. In 2024, the average design patent allowance rate is a little over 80%.
Most utility patent applications will cost between $12,000 to $30,000 from start to finish, and there is no guarantee that you will be able to get your utility patent granted. Unlike a design patent application, expect your utility patent application to receive multiple rejections.
Several factors affect the probability of getting a utility patent. The scope of your claims will be a primary factor. Also, studies have shown that the probability of getting a utility patent increases over time. This makes sense since applicants who persevere over multiple rejections will increase their chances of getting a utility patent.
For a first-time patent applicant who qualifies as a micro entity, you can expedite your utility patent application using the USPTO’s first-time filer pilot program.
Are patents too expensive to enforce? Why bother patenting?
Do not believe the myth that patents are too expensive to enforce. Let me save you from making a colossal mistake. Consider the result of failing to patent your product. Will be you OK with copycats flooding the market at substantially lower prices?
Nowadays, patent litigation in federal court is not the only way to enforce patents against competitors.
E-commerce platforms such as Amazon provide their own programs for resolving patent disputes. You might be able to use your patents to stop competitors at a fraction of the cost of litigating.
We help patent owners stop Amazon sellers from selling infringing products. We utilize strategies to help clients enforce both design patents and utility patents.
If it becomes necessary to sue infringing competitors, we can prepare initial case assessments and contact litigation funders to explore ways to pursue patent litigation.
Which is the right patent for the lifecycle of your consumer product?
Some consumer products are meant to ride a trend that rises and dies quickly. Though there is nothing wrong that, recognize that certain patents would not fit trendy products that will quickly fall out of style.
With a life cycle of three years or less, for example, consider filing design patents to protect the appearance of your consumer product. Add a Rocket Docket request to speed up the examination of your application and get your design patent possibly granted within one year.
With a life cycle of three to ten years, consider filing a utility patent application with a Track One request to speed up the USPTO’s examination of your utility application. This expedited filing strategy will hopefully give you a utility patent sooner that can be used against competitors who copy your functional features. In addition, you might consider filing a design patent application which may get allowed sooner than your utility patent. That way, you will obtain a design patent as you continue prosecuting your utility application.
With a life cycle greater than 10 years, consider filing a utility patent application to protect the unique functional features.
Should you do a novelty patent search?
Also known as a novelty search, a patentability search may make sense under certain circumstances. Generally, you can skip a patentability search if you plan to file a design patent application without Rocket Docket. Design patent applications enjoy a high average allowance rate of about 84%, so why bother? A patentability search would be required for submitting a Rocket Docket request.
A novelty search may be helpful, but not required for filing a utility patent application. Certain factors may warrant skipping a patentability search such as the requirement to tell the Patent Office what prior art references you are aware of. Another risk is that the owner of a patent uncovered in your search may accuse you of willfully infringing their patent. Sometimes ignorance is bliss.
How can you enforce your patents without spending a fortune?
It is possible to enforce your patent without spending tens of thousands in litigation. With either design or utility patents, you can report infringing listings by Amazon sellers. Within Brand Registry, you can also take advantage of the APEX program to enforce your utility patent against infringing listings. Amazon even offers a neutral patent evaluation program for design patents.
Contact us to explore how we can help you enforce your patents against infringement by Amazon sellers.
