Design Patent Basics

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By Rich Stim

A design patent covers the unique, ornamental, or visible shape or design of a useful object. Thus if a lamp, a building, a computer case, or a desk has a truly unique appearance, its design can be patented. However, the uniqueness of the design must be purely ornamental or aesthetic; if the shape is functional and aesthetic, then only a utility patent is proper. Design patents automatically expire 14 years after they’re issued and cannot be renewed. There are no maintenance fees.

Legal Requirements for a Design Patent

There are three requirements to get a design patent. The design must be:

  • an ornamental design for a useful article of manufacture.
  • new and original, and
  • nonobvious.

Ornamental Design for an Article of Manufacture

For patent purposes, “design” refers to the visual and reproducible appearance of products. As the Manual of Patent Examination Procedure (MPEP) puts it, design “is the appearance presented by the article which creates an impression through the eye upon the mind of the observer” (MPEP Sec.1542). In other words, it’s the way that a product looks.

There are three common types of protectible product designs:

  • shape and proportions -- for example, an Eames chair
  • surface ornamentation -- for example, a Keith Haring Swatch watch, or
  • a combination of shape and surface ornamentation -- for example, an Air Jordan sports shoe.

In addition, a design “must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method” (MPEP Sec.1502). For example, a randomly changing laser light pattern could not be protected, but a water fountain display -- the combined appearance of the water and the underlying sculpture -- is protectible.

To be patentable, a design must be “primarily ornamental.” This means that the claimed design cannot be dictated by the article’s function. If a variety of designs could achieve the same function, the design is ornamental.

To be ornamental, the design should also be visible during normal intended use or at some other commercially important time -- for example, at the time of sale or in an advertisement. Designs for articles that would be hidden intermittently -- for example lingerie, garment hangers, tent pegs, and inner soles for shoes -- may still acquire design patents.

Finally, a design patent can be granted only if the design is embodied on an article of manufacture -- term that encompasses anything made “by the hands of man” from raw materials, whether literally by hand or by machinery or by art. Although the term “article of manufacture” is broad and includes everything from computer icons to wallpaper, it is not meant to include paintings, silk screens, photographs, or separable two-dimensional surface ornamentation, such as decals. However, this distinction is difficult to pin down. For example, a roof shingle that mimics the appearance of wood shingles (and fools the eye into believing that a two-dimensional product is a three-dimensional product) is protectible despite its “separable” surface ornamentation and similarity to naturally occurring objects. Finally, a design can be patented even if it’s only a portion of the article -- for example, the shank of a drill bit.

New and Original

To be new (also referred to as “novelty”), a design must differ from all previous product designs (known as the “prior art”). A design must also be original, which means that it has to do more than simply imitate what already exists. A design that simulates a well-known object -- for example, a paperweight replica of the Empire State Building -- is not considered to be original. The design must be the result of “industry, effort, genius, or expense.” 

It’s generally not considered original to depict something naturally occurring, but this standard is interpreted loosely. For example, a design patent for a model of a human baby was invalidated, but the designers of a replica of female breasts on beads were granted a design patent and successfully enforced it against competitors.


The PTO will reject a design patent application if the design would be considered obvious by others in the field. It doesn’t necessarily take great originality or craftsmanship to create a nonobvious design; sometimes, it requires only the ability to visualize things a little differently.

A design will be more likely to meet the “nonobvious” test if:

  • it has enjoyed commercial success
  • it has a visual appearance that’s unexpected
  • others have copied the design
  • the design has been praised by others in the field
  • others have tried but failed to achieve the same result, or
  • a design is created that others said could not be done.

It is possible for a design to be new and obvious at the same time. For example, a court determined that a design for an alcohol server that was shaped like an intravenous dispenser was new -- no such design had been used for serving alcohol -- but it was obvious and therefore not patentable.

For purposes of a design patent, the difference between novelty and nonobviousness is this: A design is novel if no one has previously made a similar design, while a design is nonobvious if no one has even considered making the design. In practical terms, though, the two standards often overlap -- and for design patents, lack of prior art becomes the measure of both nonobviousness and novelty.

Design Patent Prosecution

Design patent prosecution is much simpler than regular patent prosecution and rarely requires more than elementary changes. Usually, the examiner tells the applicant exactly what to do. The drawings are the key element because the claims in a design patent are presented visually, not by words. To be patentable, the appearance of the applicant’s design, as a whole, must be nonobvious to a designer of ordinary skill over the references (usually earlier design patents) cited by the examiner. Because many companies may modify their patented designs, multiple design patent applications are often filed to separately claim the various ways that the design may be embodied.

Other design patent articles that may help you:

Should You Get a Design Patent?

Preparing a Design Patent Application


Portions of this article are derived from Nolo's Patents for Beginners.