Design Patents

Under United States patent law, there are three different types of patents issued by the United States Patent and Trademark Office (USPTO). The first and most commonly known patent is the Utility Patent. Utility Patents apply to functional inventions like machines, apparatuses processes, or compositions of matter, and correspond to the common understanding of patentable subject matter. Patents may also be issued on new varieties of asexually produced cultivated plants and on designs.

Design Patents

Design patents protect ornamental designs on articles of manufacture. Although a patentable design may have functional or structural aspects, the ornamental aspect of a design must not be dictated by function alone. One test of ornamentality is whether the article of manufacture would still function without the design or with a different design. If so, the design is likely to meet the ornamentality requirement. An example would be an arrangement of triangular ventilation holes for cooling a machine. If the function of ventilation could be accomplished with round holes or slits, the arrangement of triangular holes might be patented as a design. If the ventilation would not work without the triangular arrangement of holes, the functional aspect would be said to predominate the ornamental aspect, rendering the triangular holes ineligible for a design patent. For a design that has some functional or structural aspects, only the ornamental aspect of the design is patentable under a design patent. If the functional or structural aspect of a design is new and otherwise patentable, it may also be eligible for a utility patent.

The basic requirements of all patents apply to design patents. To be patentable, a design must be new and non-obvious. To determine whether a design is new, the USPTO will search existing design patents, current design patent applications and literature pertaining to the article of manufacture and type of design that might reveal that the design to be patented is not new. The body of information pertaining to a given design is called the “prior art.” If an examination of the prior art reveals that the design has been patented previously, described in the literature or used for a certain amount of time before a design patent was applied for, the design will be ineligible for a patent. To be patentable, designs must also be original, which means that a design found in nature, such as the shape of a leaf or the feature of an animal, may not be patented.


Non-obviousness generally applies to improvements to existing designs and requires that a person reasonably skilled in the field within which the design is classified would not consider the new design to be an obvious progression from an existing design or combination of existing designs as revealed by the prior art. The non-obviousness standard is difficult to apply and entails consideration of the scope and content of the prior art, the differences between the design for which a patent is sought and designs found in the prior art, and the level of skill exhibited in the prior art.

When a design patent is issued, the patent gives the owner of the patent a right to prevent others from using, making, selling or importing the design without the patent owner’s permission for a period of 14 years. This differs from utility and plant patents, which are generally issued for a term of 20 years from the application filing date. After 14 years, the design patent enters the public domain and may be used by anyone.

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