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Design Patents Under the America Invents Act

  • 09.30.11
  • Sterne, Kessler, Goldstein & Fox P.L.L.C.

While the Act does not specifically mention design patents, it does not exclude them either, as have prior revisions to the patent law. Therefore, all applicable provisions apply equally to design patents and applications as they do to utility patents and applications.  

Some of the provisions however, may affect design patents and applications differently.  For example, the first-to-file provision could prove to be more perilous given how quickly a design patent application could be filed on a leaked competitor's product. While the first filed design patent would be invalid, the true inventor would have to rely on a post grant review or derivation proceeding to eliminate the patent.  

Please contact Tracy-Gene G. Durkin with additional questions.

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