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The Design alternative

A client approached the PatentXL Law Firm’s founding attorney with a pending utility patent application that the client was in the process of letting go abandoned because of the many rejections issued by the USPTO against that application.  

That application was directed to a dispenser of a consumable product.  The numerous rejections issued by the USPTO had led the prior client’s attorneys to add many limitations to the pending claims of the application, some of which did not even form part of the client’s commercial version of the dispenser.

These added limitations effectively  rendered the application (and the eventual patent that may issue from that application) worthless.  The founding attorney suggested to the client to at least allow him to file a pair of design patent applications to be derived from one of the pending application’s drawings to try to protect the shape of the dispensing opening of that dispenser., which was somewhat different and new.   

That proposal encountered resistance from other IP experts (internal and external to the client) because of the unlikeliness that they would be allowed by the USPTO.  But this firm’s  founding attorney  persevered and filed and prosecuted the two design patent applications, which eventually matured into two design patents.  

Since then, those design patents have been used by the client to have a competitor from selling a dispenser that had a dispensing opening similar to what is claimed in those patents.