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2950 Grant of Protection Only Upon Issuance of Patent; Term of Design Patent [R-07.2015]

35 U.S.C. 389  Examination of international design application.

  • (a) IN GENERAL.—The Director shall cause an examination to be made pursuant to this title of an international design application designating the United States.
  • (b) APPLICABILITY OF CHAPTER 16.—All questions of substance and, unless otherwise required by the treaty and Regulations, procedures regarding an international design application designating the United States shall be determined as in the case of applications filed under chapter 16.
  • (c) FEES.—The Director may prescribe fees for filing international design applications, for designating the United States, and for any other processing, services, or materials relating to international design applications, and may provide for later payment of such fees, including surcharges for later submission of fees.
  • (d) ISSUANCE OF PATENT.—The Director may issue a patent based on an international design application designating the United States, in accordance with the provisions of this title. Such patent shall have the force and effect of a patent issued on an application filed under chapter 16.

35 U.S.C. 173   Term of design patent.

Patents for designs shall be granted for the term of 15 years from the date of grant.

37 CFR 1.1071 Grant of protection for an industrial design only upon issuance of a patent.

A grant of protection for an industrial design that is the subject of an international registration shall only arise in the United States through the issuance of a patent pursuant to 35 U.S.C. 389(d) or 171, and in accordance with 35 U.S.C. 153.

37 CFR 1.1031 International design application fees.

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(e) Payment of the fees referred to in Article 17 and Rule 24 for renewing an international registration (“renewal fees”) is not required to maintain a U.S. patent issuing on an international design application in force.

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A grant of protection for an industrial design that is the subject of an international registration shall only arise in the United States through the issuance of a patent pursuant to 35 U.S.C. 389(d) or 171, and in accordance with 35 U.S.C. 153. See 37 CFR 1.1071. The Office does not regard the failure to send a notification of refusal within the period referenced in 37 CFR 1.1062(b) to confer patent rights or other effect under Article 14(2). The Hague Agreement is not self-executing, and title I of the Patent Law Treaties Implementation Act of 2012 (PLTIA) provides for patent rights only upon issuance of a patent. See 35 U.S.C. 389(d) added by the PLTIA, 126 Stat. at 1531; see also S. Exec. Rep. No. 110-7, at 5 (“The proposed Act makes no substantive changes in U.S. design patent law with the exception of the following: the provision of limited rights to patent applicants between the date that their international design application is published by the IB and the date on which they are granted a U.S. patent based on that application; the extension of a patent term for designs from fourteen to fifteen years from grant; and allowing the USPTO to use a published international design registration as a basis for rejecting a subsequently filed national patent application that is directed at the same or a similar subject matter.”).

U.S. patents issued from international design applications shall be effective for a term of fifteen years from the date of grant. Payment of the fees referred to in Article 17 and Rule 24 for renewing an international registration (“renewal fees”) is not required to maintain in force a U.S. patent issuing on an international design application. See 37 CFR 1.1031(e).

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Last Modified: 01/24/2018 17:19:02