USPTO Creates New Design Patent Bar

The USPTO is implementing a design patent practitioner bar, wherein admitted design practitioners would practice solely in design patent matters.  You can find the final rule here:

Director of the USPTO Kathi Vidal stated, “Expanding the admission criteria of the patent bar encourages broader participation and keeps up with the ever-evolving technology and related teachings that qualify someone to practice before the USPTO.”

Its note worthy that the USPTO will go into effect in less than two months (January 2, 2024).  One must wonder if less than two months is enough time for such an momentous change.

One also can’t help but think of the possible negative consequences of this rule.  The vast majority of patent practitioners in the US are also attorneys.  Will this be true for the design bar practitioners?  If it is not, will the public be confused or mislead in receiving IP advice from practitioners not qualified to give legal advice or advice even relating to utility patents?  A large part of a quality patent attorneys practice is offering holistic IP advice with the goal of protecting client’s commercially valuable subject matter.  This often requires strategic interplay between different types of IP across multiple jurisdictions.

One might say, but patent agents are not attorneys and their inclusion hasn’t caused issues.  However, one should note that being admitted to design patent bar only entitles one to work on design patents and excludes one from utility patent practice.  The reverse is not true.  Therefore, when working with a design bar practitioner, only design patent services will be possible.

One must hope that the private practice can adjust quickly to this change.  One must also hope that the design practice market is not flooded with under qualified practitioners who as one public commenter stated “lack the training and experience to provide fully competent counsel concerning the differences between utility and design patent protection, have a bias favoring pursuit of design patent protection which could work against the client’s interest, and that such a bar would create confusion amongst the public.”

In any case, this is happening and we have less than 2-months to prepare…



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