Can you patent a design that is already in use?

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In general language design patents and utility patents both are referred to as patent. Therefore, we are explaining the both scenarios.

Then there are two questions.

  1. Can you patent (utility patent) a design that is already in use?
  2. Can you patent (design patent) a design that is already in use?

Ans-1: Yes, a utility patent can be obtained for a subject matter outer appearance of which is already in use. Please note, that a utility patent is granted in respect to technical advancement and inventive features; however, the design is granted for outer appearance. Therefore, there is no impediment in registering a utility patent for technical advancement or inventiveness where the outer appearance of the same subject matter is already in use.

Ans-2: Please note that to get a design patent, the design must be novel. Therefore, one cannot obtain a design patent for the same subject matter which is already in use. One may get design patent registration in few cases where the examiner is unaware of existence of same subject matter before design patent application; however, it will entitle to the competitors to file a rectification/cancellation of design patent.

We hope we answered all of your queries.

Thanks & Regards,

Delhi Intellectual Property LLP

Phone: +91-9911456111 / +91-9911984111

Website: www.delhiip.com

Email: info@delhiip.com

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