The term for utility patents is typically determined based on the filing date of the priority application, thereby limiting the term of subsequently filed "child" (e.g., continuation, divisional, and continuation-in-part "CIP") patents. In contrast, the term for design patents is determined based on the design patent's issue date. Specifically, design patents that issue after May 13, 2015 have a term of 15 years from the issue date, while design patents that issued prior to May 13, 2015 have a term of 14 years from the issue date.
Why is this seemingly minor difference in determining patent term significant for design patents? The term of a design patent family is not limited by the filing date of the earliest application, meaning that a design patent family could live indefinitely (in theory, though other issues would likely arise in practice). For example, an applicant may file a CIP design patent application that claims priority to a prior patent application, and the term of the CIP design patent application would be 15 years from its issue date regardless of the filing date of the prior patent application. This is important to consider both on the front end — when strategizing to build a design patent portfolio — and on the back end — when determining non-infringement or reasonable royalties during litigation or calculating value based on potential term of a patent family during an acquisition or sale.
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