What Is a Design Patent?

A design patent protects the way an article looks, not how it works. "Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title" (35 U.S.C. § 171(a)). A design patent covers the ornamental appearance of a manufactured article: its shape or configuration, its surface ornamentation, or a combination of the two. It does not cover the functional or utilitarian aspects of the article; those belong to utility patents. The design must be new, original, ornamental, and nonobvious, and it must be embodied in or applied to an article of manufacture.

Design patents last 15 years from grant for applications filed on or after May 13, 2015 (35 U.S.C. § 173). A design patent is infringed if an ordinary observer, familiar with the prior art, would be deceived into thinking the accused design is the same as the patented design (Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc)). A design patent owner may instead of ordinary patent damages recover the infringer's total profit on the "article of manufacture" to which the design was applied (35 U.S.C. § 289), which may be a component rather than the whole product (Samsung Elecs. Co. v. Apple Inc., 580 U.S. 53 (2016)).

This term also appears as a short entry in the 36-term patent glossary in "Patent Basics for Litigation, with a Glossary." This page is the fuller treatment and links to that guide.

Pinpoint: 35 U.S.C. § 171. Related term: Design Patent.

Sources.

• 35 U.S.C. § 171: patents for designs. law.cornell.edu
• 35 U.S.C. § 173: term of design patent. law.cornell.edu
• 35 U.S.C. § 289: additional remedy for infringement of a design patent. law.cornell.edu

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