Usually, inventors would either file a utility (provisional or non-provisional) applications or a design applications. As a patent attorney, I’m asked the difference between the two almost everyday. For starters, you can read about the difference between a design v. utility patent applications here.
Design patents are often ignored by patent applicants (and their patent attorneys) when the invention includes a functionality (that is, a utility). And while it may not make sense to file a design patent application in each case, however, to maximize the true potential of ones invention, filing both a design and utility patent application simultaneously should be considered. In fact such filings often, when possible, complement each other. At other times filing one application (e.g., design) first may be advisable to create a comprehensive strategy for the timing to file the second application (e.g., utility). Depending on the situation, the advantages of such strategies, can be seen when enforcing ones rights based on the procured patents.
Whether it is a software based design or a physical/ tangible product, design patent applications can protect how the invention physically looks, regardless of the underlying functionality (or utility) of the invention.
Therefore, design patents can be helpful in inventions where there can be a number of ways to implement the functionality of the invention (e.g., software based inventions, tangible products, etc.), but the invention offers a unique design to form the basis of the patent. For example, in Graphical User Interface (GUI) based objects, one does not need to learn how the GUI based object functions, and the focus remains on how it looks. A further advantage of design patents is that they have over a 97% allowance (grant) rate rather than an approximately 40% allowance rate of utility based patent applications. Given the fact that investors (not to be confused with inventors) want to hear “patent” instead of “patent pending,” a design patent seems to have become an underutilized tool that can reward inventors in many different ways.
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