Design Patent in USA

A design patent protects the ornamental design of a functional item. Design is inseparable from the article to which it is applied and cannot exist alone merely as a scheme of surface ornamentation. Unlike utility patents that protect how something works, design patents protect how something looks.

In general terms, a utility patent protects the way an article is used and works, while a design patent protects the ornamental appearance. A design patent safeguards the way an item looks, not how it works or is used (which can only be protected by utility patents).

An ornamental design may be embodied in an entire article (e.g., a vase) or only a portion (e.g., the handle of a cup), or may be ornamentation applied to an article. This includes:

• Shape and configuration of products
• Surface ornamentation and patterns
• Computer-generated icons on screens
• Unique product appearances
• Decorative elements applied to articles

A design patent is generally easier to obtain and lasts for a term of 15 years from the date of grant (for applications filed on or after May 13, 2015). No maintenance fees are required.

The U.S. design patent statute (35 U.S.C. 171-173) states four key requirements:

• Novelty
• Originality
• Ornamentality
• The subject must be an "article of manufacture".

Additionally, the design must be non-obvious.

The design must be new. Courts apply the "average observer test" to evaluate the novelty of a design, meaning the overall appearance must be different from existing prior art in the eyes of an ordinary observer.

A patentable design must be original. You cannot obtain a design patent for something copied from another source. This protects the interests of the original inventor.

The design must have a unique ornamental appearance. The USPTO examines ornamentality in relation to the product’s function. In general, the design should not be dictated solely by mechanical or functional requirements.

Section 171 requires that the design must be "for an article of manufacture", meaning a man-made tangible object. Thus, prints, pictures, or decorative designs must be applied to such an object to qualify.