On November 16, 2023, the United States Patent and Trademark Office (USPTO) announced a rule that will allow individuals with a design background to practice before the USPTO. Specifically, the rule announces that persons can now sit for the patent bar when they have a bachelor’s, master’s, or doctoral degree in the field of:

• Industrial Design;
• Product Design;
• Architecture;
• Applied Arts;
• Graphic Design;
• Fine/Studio Arts;
• Art Teacher Education; or
• Equivalent degrees to the degrees listed above.

However, persons who pass the patent bar with one of these backgrounds will be given limited recognition to prepare and prosecute only design patents. Accordingly, many have deemed this limited recognition to practice in design patents the design patent bar.

A design patent protects the ornamental design for an article of manufacture, which simply means the overall visual appearance of a product. Examples of designs include the ornamental designs of motor vehicles, furniture, clothing/apparel, consumer products, and graphical user interfaces, just to name a few. This differs from a utility patent, which protects the underlying make or use of a process, machine, manufacture, or composition of matter. Due to the design patent bar’s limited recognition, design patent practitioners will not be able to practice before the USPTO concerning utility patent applications. By contrast, persons who sit for the patent bar under the pre-existing rules can practice before the USPTO with regard to both design and utility patents.
The rule is set to go into effect on January 2, 2024.

At Thomas Horstemeyer, we look forward to the expansion of practitioners who can practice design matters before the USPTO.