Q: Are provisional patents for design?

Competitor claims they have a provisional patent for all but color change of an (my) existing product. I thought provisional patents were for utility only. Could they be lying? How do I find out?

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: A provisional patent application is for a utility patent but one can file a design patent application as a continuation of a utility patent application so there is some small chance that they could end up with a design patent from an initial provisional patent application.

Generally a mere color change will be insufficient to obtain a design patent from an existing design. However your competitor may not tell the USPTO about your design (violation of the rules but it happens).

Unfortunately you really have no way of seeing a provisional patent application unless it is associated with a non-provisional patent application that gets published or with an issued patent. Design patent applications are not published either.

Even if your competitor obtained a patent for a design that is very close to your design, you would still be able to sell your existing design if your design was being sold in public sales before the competitor filed a patent application.

I hope this helps.

Kevin

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