The USPTO has finalized plans to create a design patent practitioner bar, which will expand who is allowed to practice before the USPTO. The agency published a final rule in the Nov. 16 Federal Register making the change official.

The plan to introduce a design patent practitioner bar first was introduced in Oct. 2022. An applicant must meet the following criteria: “a bachelor’s, master’s, or Ph.D. degree in one of the areas the USPTO considers when hiring design patent examiners (or an equivalent): industrial design, product design, architecture, applied arts, graphic design, fine/studio arts, or art teacher education.” Also, applicants would have to take and pass the current registration exam and pass a moral character evaluation, along with other requirements.

Those already registered to practice in patent matters would not be affected by the new design patent practitioner bar, nor would it impact the ability of applicants who meet the general patent bar criteria to practice in design patent matters.

In a May 2023 statement, USPTO Director Kathi Vidal said, “By creating a separate design patent bar that better aligns with the backgrounds of those who practice in the design space, we will broaden participation before the USPTO while further securing the robustness and reliability of the intellectual property we grant.”

However, while the design patent space may be expanding, there is no substitute for experience. Those looking to establish or defend a design patent with the USPTO should consider the practitioner’s prior work with design patents and the USPTO. 

Experience with design patents is the key to obtaining valuable design patent protection and enforcement. If you need assistance or have any questions regarding the matters discussed in this alert, please contact the authors or the Womble Bond Dickinson attorney with whom you usually work.