Guide
Utility patent vs design patent: which one stops a copy of your product
Written August 27, 2026
A utility patent covers how a product works. A design patent covers how it looks. That is the whole distinction, and USPTO's own manual states it in those terms. If you are reading this because a seller is already listing a copy of your product, there is a more useful answer first: neither patent is going to help you this month, and the right that takes the listing down is usually copyright in your product photographs.
Key findings
- Government fees to grant, at the rates effective January 19, 2025: a design patent costs $2,600 undiscounted, $1,040 small entity, $520 micro entity, with no maintenance fees ever. A utility patent costs $3,290, $1,316 or $658 before you reach the first maintenance fee.
- USPTO's dashboard puts average total pendency at 21.3 months for a design application and 29.3 months for the combined utility, plant and reissue pool, for FY2026 through July and August 2026.
- Allowance rates run 84.8% for design applications against 58.1% for that same utility, plant and reissue pool.
- A design term runs 15 years from grant. A utility term runs 20 years from filing, so the wait at USPTO is subtracted from a utility patent's life and not from a design patent's.
- Patents are not retroactive, US design applications never publish, and selling publicly for more than a year normally closes the patent route entirely under 35 U.S.C. 102.
Which right fits your situation
Most pages on this subject answer a pre-launch inventor asking what to file. This table answers the merchant question: someone is selling a copy right now, so which right acts on it, how long does it take, and what does the government charge.
| Your situation | The right that acts | Where it goes | How long | Government cost |
|---|---|---|---|---|
| A seller is using your product photographs | Copyright in the photographs, which you own from the moment you take them | The platform's own reporting form, as a DMCA notice | You can send it today | $0 to send |
| The look of your product is copied and you already hold a design patent | Your design patent, tested by whether an ordinary observer thinks the two designs are substantially the same | A demand letter, then a court, plus platform patent claim forms | Immediately, on a patent already granted | Already paid |
| The look of your product is copied and you hold nothing | Photo copyright now, and a design patent only for future copies | Platform notice today, USPTO application for the future | 21.3 months on average to a design grant | $1,040 small entity to grant |
| The function of your product is copied and you hold a utility patent | Your utility patent | A demand letter, then a court, plus platform patent claim forms | Immediately, on a patent already granted | Already paid |
| Your brand name or logo is on their listing | Trademark, registered or unregistered | The platform's trademark complaint channel, or a demand letter | You can send it today | $0 to send |
| You have been selling this product publicly for more than a year | Copyright and trademark only; the patent route is normally closed by 35 U.S.C. 102 | The platform's own reporting form | You can send it today | $0 to send |
| You want a registration on file before you sue over the photographs | Copyright registration, which 17 U.S.C. 411(a) requires before a suit | copyright.gov, electronic filing | 4.1 months on average, 3.6 for electronic filings needing no correspondence | $45 or $65 |
Four of those seven rows land on copyright. Photographs are the one asset a copycat almost always takes verbatim, and copyright is the one right that exists without an application, a fee or a wait. The patents matter for the copy that has not happened yet.
The two patents side by side
USPTO's manual draws the line in one sentence: a utility patent protects the way an article is used and works, and a design patent protects the way an article looks. The statute behind the design side, 35 U.S.C. 171(a), allows a patent for a "new, original and ornamental design for an article of manufacture", and MPEP 1502 defines that design as "the visual characteristics embodied in or applied to an article". A chair with a new reclining mechanism is a utility question; the same chair with a silhouette nobody has drawn before is a design question. Plenty of products are both, and they are then two applications, not one.
| Design patent | Utility patent | |
|---|---|---|
| Protects | The way the article looks | The way the article is used and works |
| Term | 15 years from grant | 20 years from filing |
| Number format | A D prefix, as in D123,456 | Plain digits |
| Claims allowed | One | As many as the application supports |
| Published before grant | No, exempt under 35 U.S.C. 122(b)(2)(A)(iv) | Yes, normally at 18 months (35 U.S.C. 122(b)) |
| Provisional priority | No. 35 U.S.C. 172 denies designs the benefit of a provisional filing date. | Yes |
| Government fees to grant, undiscounted | $2,600 | $3,290 |
| Government fees to grant, small entity | $1,040 | $1,316 |
| Government fees to grant, micro entity | $520 | $658 |
| Maintenance fees | None | Due at 3.5, 7.5 and 11.5 years |
| Average time to a first action | 12.1 months | 20.8 months |
| Average total pendency | 21.3 months | 29.3 months |
| Allowance rate | 84.8% | 58.1% |
Two rows in that table are worth more than the rest of the page. The term rows point in opposite directions. 35 U.S.C. 173 gives a design patent 15 years "from the date of grant", for applications filed on or after May 13, 2015, so the 21.3 months the application spends at USPTO costs you nothing off the clock. 35 U.S.C. 154(a)(2) ends a utility term "20 years from the date on which the application for the patent was filed", so the average 29.3-month wait is spent out of the 20 years you are paying for. Nobody comparing the two headline numbers, 15 against 20, is comparing like with like.
The publication row catches merchants out. A utility application publishes at 18 months, which at least puts the world on notice while you wait. A US design application never publishes at all, and the consequence of that is below.
One caveat on the utility numbers. USPTO reports pendency and allowance for utility, plant and reissue applications as a single pool with no utility-only split, so 29.3 months and 58.1% describe that pool. The dashboard also reports 21.9 months for design and 33.2 for the pool when applications with a request for continued examination are counted, and 78.6% allowance for the pool once abandonments after such a request are excluded.
What each one costs in government fees
USPTO charges three fees on the way in and one on the way out, and it discounts all of them for small and micro entities. Every figure below is read from the USPTO fee schedule marked effective January 19, 2025, with the page last revised August 14, 2026. These are the only numbers USPTO controls. Attorney or agent fees are separate, are not published anywhere authoritative, and this page does not guess at them.
| Fee | Undiscounted | Small entity | Micro entity |
|---|---|---|---|
| Filing | $300 | $120 | $60 |
| Search | $300 | $120 | $60 |
| Examination | $700 | $280 | $140 |
| Issue | $1,300 | $520 | $260 |
| Total to grant | $2,600 | $1,040 | $520 |
| Maintenance | None | None | None |
| Fee | Undiscounted | Small entity | Micro entity |
|---|---|---|---|
| Filing | $350 | $140 | $70 |
| Search | $770 | $308 | $154 |
| Examination | $880 | $352 | $176 |
| Issue | $1,290 | $516 | $258 |
| Total to grant | $3,290 | $1,316 | $658 |
| Maintenance at 3.5 years | $2,150 | $860 | $430 |
| Maintenance at 7.5 years | $4,040 | $1,616 | $808 |
| Maintenance at 11.5 years | $8,280 | $3,312 | $1,656 |
| Total across the full term | $17,760 | $7,104 | $3,552 |
The two full-term rows are our addition of USPTO's published line items, not a figure USPTO prints. Keeping one utility patent alive for its whole term costs $17,760 undiscounted, $7,104 as a small entity and $3,552 as a micro entity. A design patent is done at grant: $2,600, $1,040 or $520, and nothing after. The closest comparison you already have is what registering a mark costs over ten years.
Against those numbers, put the two Copyright Office fees, which are the whole government cost of the right that removes listings: $45 for a single author registering one work not made for hire, $65 for a standard electronic application, on the current fee schedule as of August 2026.
Why a patent does nothing about a copy that is live now
Four facts decide whether filing anything is even on the table for you.
A patent you have not been granted yet is not a right
You cannot act on an application. The average wait to grant is 21.3 months on the design side and 29.3 on the utility side for the combined utility, plant and reissue pool, so a copy selling today keeps selling for the whole of that period regardless of what you file tomorrow. Utility applicants get one partial consolation: 35 U.S.C. 154(d)(1) gives provisional rights to a reasonable royalty for the period between publication and grant, but only if the application published and only if the copier had actual notice of it.
A pending design application earns you nothing while it waits
Design applicants do not get even that partial consolation. 35 U.S.C. 122(b)(2)(A)(iv) exempts design applications from publication, and the provisional-rights section is keyed to a published application. Reading those two together, our conclusion is that a pending US design application carries no pre-grant royalty right, because there is never a publication to trigger one. That is our reading rather than a quotation, so check it with counsel if it changes what you do.
A year on sale usually closes the door
35 U.S.C. 102(a)(1) bars a patent where the invention was on sale or otherwise available to the public before the filing date, and the grace period in 102(b)(1) shelters only the inventor's own disclosures made within the year before filing. If your product has been on your own storefront for eighteen months, the patent conversation is usually over before it starts. The products people most want to protect are the ones that have been selling long enough to attract a copier.
6 mo
12 mo
18 mo
24 mo
30 mo
- Send a notice on your stolen photos 0 mo Day one. Copyright exists on creation and a notice needs no registration number.
- Copyright registration 4.1 mo 3.6 months average through eService with no correspondence, 4.1 months average across all claims.
- Design patent, filing to grant 21.3 mo 21.3 months average total pendency, 12.1 months to a first action.
- Utility patent, filing to grant 29.3 mo 29.3 months average total pendency, 20.8 months to a first action.
Patent figures from the USPTO patents dashboard, FY2026 through July and August 2026. The utility row is USPTO's combined utility, plant and reissue number, because the office does not publish a utility-only split. Copyright figures cover claims closed October 1, 2025 to March 31, 2026, a window the Copyright Office notes was lengthened by the government shutdown in October and November 2025.
What a design patent does win, when you hold one
None of this makes design patents weak. The Federal Circuit held in Egyptian Goddess v. Swisa, 543 F.3d 665 (2008), sitting en banc, that "the 'ordinary observer' test should be the sole test for determining whether a design patent has been infringed", removing the separate point-of-novelty hurdle defendants used to raise. The test is readable: whether, in the eye of an ordinary observer giving the attention a purchaser usually gives, two designs are substantially the same. That is close to how a merchant already describes a copy.
The remedy is sharper still. 35 U.S.C. 289 lets a design patent owner elect the infringer's "total profit, but not less than $250" instead of the ordinary damages remedy. Total profit, not a reasonable royalty. The Supreme Court narrowed what that profit attaches to in Samsung v. Apple, decided December 6, 2016, holding that the "article of manufacture" in section 289 "encompasses both a product sold to a consumer and a component of that product".
What actually removes a listing today
Copycats take the pictures. It is the cheapest part of your work to lift, and photo copyright is the right most merchants can actually act on, because it exists the moment the photos do.
Copyright exists the moment the photograph is taken, and a takedown notice does not need a registration number. The elements a compliant notice must contain are listed in 17 U.S.C. 512(c)(3), and a registration number is not among them, which is why a notice is something you can send this afternoon. The same section's neighbor, 512(f), makes a knowing material misrepresentation actionable, so claim only what you own and can show. For the wording, read the notice, field by field, or generate a takedown notice for any marketplace in your browser.
Registration matters at the next step, not the first. 17 U.S.C. 411(a) bars a suit until "preregistration or registration of the copyright claim has been made", and the Supreme Court settled what that means in Fourth Estate v. Wall-Street.com on March 4, 2019: "Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright." The same opinion notes the compensating point, that upon registration a copyright owner "can recover for infringement that occurred both before and after registration". The Copyright Office also backdates the effective date to the day an acceptable application, deposit and fee have all been received, not the day the certificate arrives.
The wait is short by patent standards. For claims closed between October 1, 2025 and March 31, 2026, the Copyright Office reports an average of 4.1 months across all claims, and 3.6 months for electronic filings that needed no correspondence, in a range of 2 to 5.3 months. The office notes that the government shutdown in October and November 2025 temporarily lengthened those figures. That is $45 or $65 and roughly a fifth of the wait a design patent asks for.
If the seller took your name or your logo rather than your pictures, that is a trademark question and a different lever: read when a demand letter is the right move, and when sending one is a mistake first, and a trademark monitoring service catches the next name before it launches. If the copy is a whole storefront, follow the running order for the day you find a copy of your store. If it is sitting on your own ASIN, see removing a hijacker from your Amazon listing.
Where a patent claim goes on each marketplace
If you do hold a granted patent, the marketplaces take claims on it, with real differences in what happens next. Everything below is read from the platforms' own pages on August 27, 2026.
| Platform | What its own page says |
|---|---|
| eBay | Its intellectual property policy prohibits listings that infringe "copyrights, trademarks, designs, patents, and utility models", and its VeRO program is the route rights owners use to report. The same policy describes protected designs as covering "items that copy or imitate a protected design" and "items whose overall impression doesn't differ from the protected design". |
| Walmart | Its Brand Portal and IP claim form accept patent claims alongside copyright and trademark, and its Marketplace Learn page updated December 11, 2025 names both utility and design patents as reportable. Walmart's own page states it does not mediate patent disputes and will forward the claim to the third party. |
| Amazon | Its Brand Registry page describes using "neutral third-party evaluators to determine whether a utility patent has been infringed", with the decision enforced in its US store. Amazon also operates a sign-in-gated report form at amazon.com/report/infringement. |
| Etsy | Etsy's help center states that its IP policy covers "copyright, trademark, and patent infringement", and a second help article says each claim type has its own requirements and lists a patent-specific rejection reason where the jurisdiction of the patent does not align with the seller's location or delivery areas. No Etsy text distinguishes utility from design patents. |
Two lines matter. Walmart is explicit that forwarding a patent claim is the whole of what it does, so a patent claim there starts a dispute rather than ends one. And Amazon's public description of neutral evaluation is written in terms of utility patents, so check what a granted design patent gets you there before you build a plan around it. Copyright claims on your photographs go through the ordinary reporting route on all four, and which channel each platform gives a rights owner walks through the forms one at a time.
When a design patent is worth filing anyway
Everything above is about the copy in front of you. This is about the next one, and for a certain kind of product the arithmetic is good.
- You have one hero SKU that keeps getting copied. Not a catalog of forty. Design patents are per-design, and the case for filing rests on a product whose appearance is the reason people buy it.
- The look is the moat. If a copier changing the shape would lose the sale, a design patent covers what you care about. If they could change the shape freely and still take your customer, you have a utility or a brand problem.
- The government cost is bounded. $1,040 at small-entity rates gets you to grant and nothing falls due after it, which makes a design patent the rare intellectual property line item you budget once.
- The odds are good. USPTO reports an 84.8% allowance rate on design applications for FY2026 through July 2026, against 58.1% on the utility, plant and reissue pool, on 52,578 serialized design filings in that period.
- You file before the year runs out. The 102(b)(1) grace period is one year from your own first public disclosure or offer for sale. File inside that year or accept that the route closes.
- The wait costs you nothing. The 21.3 months come off the front of the process, not off the 15-year term, because the design clock starts at grant.
Most brands need photo copyright first, because it acts on the copy that is live this week, and the ones with a durable hero product should own both.
Where Knockoff fits in this
Knockoff is what we build, so read this knowing that. The conclusion above is also the product: photo copyright is the fast removal path, and the slow part of using it is finding the listings and assembling the proof for each one. Knockoff connects to a Shopify store with the domain alone, watches your product photos across the marketplaces and the open web, and only counts a match when your photo appears in the seller's own listing gallery. Each confirmed match arrives as an evidence pack: the archived page, a timestamped screenshot, the side-by-side and the exact notice. You approve the case, a person here reads the notice, and you file it through the platform's own portal. See what a case contains before you approve it, or run a free scan across your storefront's top products.
The limits, stated plainly. Shopify only today, one store per company. US trademark watch only. Design clone detection is advisory and never produces a filing, which is the honest boundary between this product and everything on this page about design patents. We make no removal guarantees and have no customer outcome statistics to show you. Every plan is priced on the page, monthly, with no contract.
Questions
What are the three types of patents? +
Utility, design and plant. A utility patent covers the way an article is used and works, and USPTO's own manual puts it that plainly. A design patent covers the way an article looks: 35 U.S.C. 171(a) allows a patent on a new, original and ornamental design for an article of manufacture, and MPEP 1502 describes that as the visual characteristics embodied in or applied to an article. A plant patent covers a distinct new variety of plant that is asexually reproduced (35 U.S.C. 161), and almost no consumer-products business will ever file one. For a store owner the choice is between the first two, and it is a choice about what you are trying to stop: the mechanism or the appearance.
How do you tell a design patent from a utility patent? +
Read the number. Design patent numbers carry a D prefix, printed as D123,456, and utility patent numbers are plain digits. That one character is the fastest check you can run on a seller who claims a patent over something you sell, and on your own portfolio if a lawyer filed it years ago and you never looked. The other tell follows from the statute: a design patent has exactly one claim, while a utility patent has numbered claims written as text and can have many of them.
Is a utility patent better than a design patent? +
Neither is better in the abstract; they stop different copying. A utility patent stops a competitor who builds the same mechanism in a different-looking body. A design patent stops a competitor who copies the look while changing nothing about how it works, which is the case most physical-product brands actually meet. The practical differences favor design for a small brand: government fees of $1,040 to grant at small-entity rates against $1,316 before a single maintenance fee on the utility side, no maintenance fees at all, an average 21.3 months to grant against 29.3, and an allowance rate USPTO reports at 84.8% against 58.1%. Fees effective January 19, 2025, pendency and allowance from the USPTO patents dashboard for FY2026 through July and August 2026. The utility comparison figures cover utility, plant and reissue applications together, because USPTO does not publish a utility-only split.
How long does a design patent last compared to a utility patent? +
A design patent runs 15 years from the date of grant, under 35 U.S.C. 173, for applications filed on or after May 13, 2015. A utility patent runs 20 years from the filing date, under 35 U.S.C. 154(a)(2). The asymmetry matters more than the raw numbers. Because the utility clock starts at filing, the average 29.3 months an application spends at USPTO is spent out of the 20 years. Because the design clock starts at grant, the 21.3-month wait costs you nothing off the 15 years. Utility patents also carry maintenance fees at 3.5, 7.5 and 11.5 years, which add up to $14,470 at undiscounted rates across the life of one patent. Design patents have no maintenance fees at all. Fee figures from the USPTO fee schedule effective January 19, 2025, page last revised August 14, 2026.
Can I patent a product I have been selling for two years? +
Almost certainly not in the United States. Under 35 U.S.C. 102(a)(1) a patent is barred if the claimed invention was on sale or otherwise available to the public before the filing date, and the grace period in 102(b)(1) only shelters disclosures made by the inventor within one year before filing. Selling publicly for two years puts you outside that year. This catches merchants constantly, because the instinct after finding a copy is to go and file something, and the selling history that makes the product worth copying is the same history that closed the patent route. Copyright in your product photography is unaffected by any of this. It exists from the moment the photograph is taken, and it is the right that removes a listing using your images.
Cite this page
Knockoff. "Utility patent vs design patent: which one stops a copy of your product." Published August 27, 2026. https://knockoff.co/guides/utility-patent-vs-design-patent
Sources and dates
Fees are from the USPTO fee schedule, marked effective January 19, 2025 with the page last revised August 14, 2026. Pendency, allowance and filing counts are from the USPTO patents dashboard, FY2026 through July 2026 for the design figures and through August 2026 for the combined utility, plant and reissue figures. Statutes are quoted from Cornell's Legal Information Institute: 35 U.S.C. 171, 173, 154, 122, 172, 102, 289, 17 U.S.C. 411 and 512. The design definition is from MPEP 1502 and 1502.01. Copyright fees are from copyright.gov, and processing times from the Copyright Office's processing times report, covering claims closed October 1, 2025 to March 31, 2026. Platform positions are read from eBay, Walmart's help article on intellectual property claims and its Marketplace Learn page, Amazon and Etsy's help center on August 27, 2026. Fees, pendency figures and platform policies all change, so check the source before you spend money on the strength of a number here.
Knockoff sells brand protection software and is not a neutral party. Knockoff is not a law firm and this page is general information, not legal advice. The reading of 35 U.S.C. 122(b)(2)(A)(iv) together with 154(d)(1) is ours and is labeled as such where it appears.
