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DESIGN PATENTS
The subject matter of a design patent application is limited to the ornamental design or shape of an article. The ornamental design of an article of manufacture should be clearly identified in the design patent application. 35 U.S.C. 171 states, “Whoever invents any new, original, and ornamental design for an article of manufacture may obtain a patent therefor”. The patent term for a design patent is fourteen years from the date of grant. You may obtain a design patent for a design of an entire article or a part of an article. Furthermore, a design patent may be obtained for a design which is applied to the surface of an article. You cannot file a provisional application for a design.

The design will not meet statutory subject matter under 35 U.S.C. 171 if the design:
- Lacks ornamentality and is defined by its function.
- Is defined by its end use and has no commercial potential unless it reaches its end use.

U.S.PTO Requirements for a design patent
Some of the statutes of the United States Code for design patents are:
  • Design Patents

    1. A design patent may be obtained for any new, original, and ornamental design for an article of manufacture. 35 U.S.C. 171
    2. A corresponding design application may be filed in another country within six months from the date of the first filed application and claim the benefit and priority of the first filed application. 35 U.S.C. 172
    3. Patents for designs are granted for a term of fourteen years from the date of grant. 35 U.S.C. 173
    4. The design should be novel over the prior art. 35 U.S.C. 102
    5. The design should be non-obvious. 35 U.S.C. 103
    6. The claimed design must be definite and must be supported by a specification that meets the written description, enablement and best mode requirement of 35 USC 112.
    7. “The design must be represented by a drawing that complies with the requirements of § 1.84 and must contain a sufficient number of views to constitute a complete disclosure of the appearance of the design. Appropriate and adequate surface shading should be used to show the character or contour of the surfaces represented. Solid black surface shading is not permitted except when used to represent the color black as well as color contrast. Broken lines may be used to show visible environmental structure, but may not be used to show hidden planes and surfaces that cannot be seen through opaque materials. Alternate positions of a design component, illustrated by full and broken lines in the same view are not permitted in a design drawing. Photographs and ink drawings are not permitted to be combined as formal drawings in one application. Photographs submitted in lieu of ink drawings in design patent applications must not disclose environmental structure but must be limited to the design claimed for the article.” (37 CFR 1.152).
  • Patentability of a design

    A design patent can be obtained provided the design meets the prerequisites for patentability, that is, novelty and non-obviousness. The patent office will grant a design patent to any person who invents a new and non-obvious ornamental design for an article of manufacture. Patentability of a design can be determined by an “ordinary observer” test and a “point of novelty” test.

    1. “Ordinary observer test”: If an ordinary observer will likely confuse a design of an article disclosed in the design patent application with the design of the article in the prior art, the design is not novel and the design patent application will generally not be allowed. The “ordinary observer” is the ordinary and customary purchaser of the article. Therefore, if the design sought to be patented visually appears to be the same as the prior art design, the design will not be considered patentable. The design sought to be patented should therefore appear new in the eye of an ordinary observer in order to be patentable.
    2. “Point of novelty” test. In deciding whether to allow the design patent application, a U.S. PTO examiner will consider whether any “point of novelty” of the article of manufacture in the design patent application is found in the prior art design. That is, if the design sought to be patented discloses the points of novelty of a prior art design, the design may not be patentable.

  • Sections of a Design Patent Application

    A separate application should be filed for each distinct design of an article of manufacture that you wish to protect. However, embodiments or modified forms of a single design may be filed in a single application. As opposed to a utility patent which protects the use and working of an invention, a design patent protects the appearance of an invention.

    The sections of a design patent application are listed below:

    1. Title: 
      The title of the design patent application should specifically and descriptively identify the article which the design embodies. Publicly used names for the article are preferred.

    2. Preamble:
      The preamble of a design patent application should state the name of the inventor, the title of the design, and should provide a brief description on the ornamental design that is sought to be protected. The nature and intended use of the article which embodies the design should be briefly described. Descriptive matter related to the embodiments or modified forms of the design embodied in the article may also be included in this section of the design patent application.

    3. Description Of The Drawings:
      This section of the design patent application should comprise a listing of the drawings illustrating the article which embodies the design. Multiple views should be provided, for example, isometric, perspective, top, bottom, side views, etc. of the article to clearly illustrate the embodied design. In this section, you should list each of the drawings by a number or reference character and provide a brief definition of each of the drawings that will be used to explain the invention. After listing the drawings, you may include a statement indicating that dashed lines or broken lines in the drawings represent unclaimed parts of the design.

    4. Claim The design patent application permits only one claim. The claim should define the design sought to be protected. The terminology of the claim should be consistent with the title stated in the design patent application.

    5. The single claim should be recited as follows: 
      I claim: 
      The ornamental design (or new design) for an (article), as shown and described. 
  • Drawings of a Design Patent Application

    The drawings are the most important part of the design patent application. The design patent application should include drawings and/or photographs illustrating the new design. The drawings of the design patent application should comply with the requirements as explained in section 3.6.1 of chapter 3. The drawings should capture every aspect of the design sought to be protected. Appropriate surface shading should be provided to clearly illustrate the contours of the article that embodies the new design in the drawings. An adequate number of views of the article that embodies the new design should be provided.

  • Guidelines for Preparing a Design Patent Application
    1. Provide an adequate number of views of the article that embodies the new design.
    2. Ensure that the shape and appearance of the design is consistent in all the drawing views. The views must be consistent in their depiction of the shape and appearance of all elements forming the claimed design.
    3. Name the views, for example, top perspective, side perspective view, as pertaining to the drawings, accurately.
    4. If you wish to claim color as part of the design, color drawings should be provided. Formal color photographs or drawings should be submitted with a grantable petition to accept color photographs/drawings as formal drawings under 37 CFR 1.84(a)(2). A request to accept color photographs/ drawings as provided by 37 CFR 1.84(a)(2) requires: 
      a) An explanation as to why color photographs/drawings are necessary;
      b) The appropriate fee under 37 CFR 1.17(h);
      c) The photographs must be on double weight paper;
      d) Three sets of photographs/drawings must be provided.
    5. You may also use lining for color in the submitted black and white drawings. In a black and white drawing, any showing of color is limited to the symbols used to line a surface to show color. In any drawing lined for color, the following special description must be inserted in the specification. --The drawing is lined for color--.
    6. Ensure that the drawing requirements as provided in section 3.6.1 of this chapter are met.
    7. Do not identify parts or components of the claimed design with reference numerals. You are not required to reference parts or components of the claimed design in the specification and drawings of a design patent application.
    8. In the preamble section of the design patent application, describe the claimed design in full, clear, concise and exact terms, and point out and distinctly claim the subject matter which is regarded as the design.
    9. If a trademark is used in the design, the following statement must be inserted in the specification immediately after the figure descriptions to identify the trademark material forming part of the claimed design and the name of the owner of the trademark. For example, use the following sentence “The [trademark] forming part of the claimed design is a registered trademark of [trademark owner].”
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
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