Design Patent, in general terms, consists of the visual ornamental characteristics embodied in any product. Since a design is manifested in its ornamental features, the protection sought in case of a design patent application may be applied to the configuration and ornamental features of the design.
The design patent could be granted for any novelty or originality in the ornamental design of an article of manufacture. Generally, for most of the patent offices, the only criteria for grant of the design patent is novelty of the design (i.e. presence of at least unique new design feature for the product category/class).
It must be understood that a design patent only protects only the appearance of the article. That is, the design patent does not cover structural or any utilitarian feature of the article of manufacture. Such features are protected by a utility patent, which may be separately filed, if desired by the applicant.
The elements of a design patent application include the following:
- Description of the figure(s) of the drawing;
- Description of the features (optional);
- A single claim;
- Drawings or photographs;
- Executed oath or declaration.
- The Preamble:
The Preamble of the design patent application generally, provides the name of the applicant, the title of the application, and, sometimes, a brief description of the article. The information in the preamble is printed on the cover page of the published patent.
- The Title:
The Title of the design patent application is included to identify the product and is generally the name by which the product is known in the public domain. The title helps the examiner in identifying field of search of the prior art and proper assignment of new applications to the appropriate class, subclass.
- Figure Description:
The Figure Descriptions are included in the design patent application to indicate the views as represented by each of the drawings, i.e., side view, front elevation, perspective view, etc. In a design patent application, it is generally not necessary to describe the design in the specification accompanying the application draft, and only a brief description of the drawing is sufficient. However, while not required, a special description is not proscribed.
In addition to the description of the figures, the following types of statements are permissible in the specification (as prescribed by USPTO):
- A description of the appearance of portions of the claimed design which are not illustrated in the drawing disclosure (i.e., “the right side elevational view is a mirror image of the left side”).
- Description disclaiming portions of the article not shown, that form no part of the claimed design.
- Statement indicating that any broken line illustration of environmental structure in the drawing is not part of the design sought to be patented.
- Description denoting the nature and environmental use of the claimed design, if not included in the preamble.
- Single Claim:
The claim in a design patent application defines the design features of any product which applicant wishes to protect. Typically, the claim is written in the form “The ornamental design for (the article which embodies the design or to which it is applied) as shown.” It is, generally, also required that the description about the product as in the claim should be consistent in terminology with the title of the patent application.
- Drawings or Photographs:
The drawing disclosure is the prerequisite element of the design patent application. A brief summary highlighting the key rules and norms as provided by the USPTO concerning the inclusion of the drawings in the design patent application is provided below:
“Every design patent application must include either a drawing or a black and white photograph of the claimed design. As the drawing or photograph constitutes the entire visual disclosure of the claim, it is of utmost importance that the drawing or photograph be clear and complete, that nothing regarding the design sought to be patented is left to conjecture. The design drawing or photograph must comply with the disclosure requirements of 35 U.S.C. 112, first paragraph. To meet the requirements of 35 U.S.C. 112, the drawings or photographs must include a sufficient number of views to constitute a complete disclosure of the appearance of the design claimed.
Drawings are normally required to be in black ink on white paper. Black and white photographs, in lieu of drawings, are permitted subject to the requirements of 37 CFR §1.84(b)(1) and §1.152.
The drawings or photographs should contain a sufficient number of views to completely disclose the appearance of the claimed design, i.e., front, rear, right and left sides, top and bottom. While not required, it is suggested that perspective views be submitted to clearly show the appearance and shape of three-dimensional designs. If a perspective view is submitted, the surfaces shown would normally not be required to be illustrated in other views if these surfaces are clearly understood and fully disclosed in the perspective.
In some cases, the Patent Office may accept color drawings or photographs in design patent applications only after the granting of a petition filed under 37 CFR §1.84(a)(2), explaining why the color drawings or photographs are necessary.”
- Executed oath or declaration:
Along with the specification and the drawings, the design patent application must include the oath or declaration incompliance with the requirements set forth in 37 CFR §1.63.