1502 Definition of a Design
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35 U.S.C. 171 refers, not to the design of an article, but to the design for an article, and is inclusive of ornamental designs of all kinds including surface ornamentation as well as configuration of goods.
The design for an article consists of the visual characteristics embodied in or applied to an article.
Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.
Design is inseparable from the article to which it is applied and cannot exist alone merely as a scheme of surface ornamentation.
- It must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method.
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In general terms, a “utility patent” protects the way an article is used and works, while a “design patent” protects the way an article looks.
- The ornamental appearance for an article includes its shape/configuration or surface ornamentation applied to the article, or both.
- Both design and utility patents may be obtained on an article if invention resides both in its utility and ornamental appearance.
While utility and design patents afford legally separate protection, the utility and ornamentality of an article may not be easily separable.
- Articles of manufacture may possess both functional and ornamental characteristics.
Some of the more common differences between design and utility patents are summarized below:
- (A) The term of a utility patent on an application filed on or after June 8, 1995 is 20 years measured from the U.S. filing date; or if the application contains a specific reference to an earlier application, 20 years from the earliest effective U.S. filing date, while the term of a design patent is 15 years measured from the date of grant, if the design application was filed on or after May 13, 2015 (or 14 years if filed before May 13, 2015).
- (B) Maintenance fees are required for utility patents, while no maintenance fees are required for design patents.
- (C) Design patent applications include only a single claim, while utility patent applications can have multiple claims.
- (D) Restriction between plural, distinct inventions is discretionary on the part of the examiner in utility patent applications, while it is mandatory in design patent applications.
- (E) An international application designating various countries may be filed for utility patents under the Patent Cooperation Treaty (PCT), whereas an international design application designating various countries may be filed for design protection under the Hague Agreement.
- (F) Foreign priority can be obtained for the filing of utility patent applications up to 1 year after the first filing in any country subscribing to the Paris Convention, while this period is only 6 months for design patent applications.
- (G) Utility patent applications may claim the benefit of a provisional application whereas design patent applications may not.
- (H) A Request for Continued Examination (RCE) may only be filed in utility and plant applications on or after June 8, 1995, while RCE is not available for design applications.
- (I) Continued prosecution application (CPA) practice is only available for design applications filed under 35 U.S.C. chapter 16.
- (J) Utility patent applications filed on or after November 29, 2000 are subject to application publication, whereas design applications filed under 35 U.S.C. chapter 16 are not subject to application publication.
