Design Patent in USA

Unique ornamental appearance is another critical design patent application requirement for successful USPTO filing. Often, patent examiners use different rules and criteria to evaluate the ornamental appearance of a claimed design. In general, ornamental characteristics of a design go beyond aesthetical appearance, attractiveness, and artistic conception. Instead, USPTO evaluates ornamentality in relation to the product's functionality. Typically, the ornamental appearance should not depend on the functional and mechanical requirements of your article of manufacture.

A patentable design must be original. Thus, an individual cannot obtain a design patent for a design copied from another source or person. This requirement is intended to protect the original inventor's interests.

The design must be "new." Courts apply the "average observer test" as a standard for evaluating the novelty of a design (i.e., the overall appearance of the design in the eyes of an average, ordinary, observer). Patent designs need to be new and non-identical from existing prior art.

The U.S. design patent statute (35 U.S.C. 171-173) includes Section 171, which states four requirements for obtaining a design patent: (1) novelty; (2) originality; (3) ornamentality; and (4) the subject matter must be an "article of manufacture." Further, the section implies that a design patent must be non-obvious as well.