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Design patent

A design patent is a form of intellectual property protection in the United States that grants the exclusive right to the ornamental appearance of an article of manufacture, rather than its functional features.^[1] Issued by the United States Patent and Trademark Office (USPTO), it covers new, original, and ornamental designs, which may include the shape, configuration, or surface ornamentation applied to or embodied in the article (or a portion thereof).^[2] This protection prevents others from making, using, selling, or importing articles that infringe upon the patented design, focusing solely on aesthetic aspects as defined under 35 U.S.C. § 171.^[3] The legal foundation for design patents stems from the Patent Act of 1842, which introduced the first U.S. design patent—granted to printer George Bruce for a new typeface—marking the beginning of protections for industrial aesthetics amid the growing manufacturing sector.^[4] Over time, the framework evolved through amendments, including the Patent Law Treaties Implementation Act of 2012, which extended the term to 15 years from grant, and the 2011 Leahy-Smith America Invents Act, which provided for integration of design patents into international systems like the Hague Agreement (with U.S. accession effective May 13, 2015) for streamlined global filings.^[5]^[6]^[7] By 2023, the USPTO had issued its 1 millionth design patent, reflecting a surge in applications—over 50,000 annually, with filings reaching over 62,000 in fiscal year 2024—driven by industries such as consumer electronics, fashion, and automotive design.^[8]^[9] Key requirements for obtaining a design patent include novelty, non-obviousness, and ornamentality, with applications typically featuring detailed drawings rather than extensive written descriptions to illustrate the claimed design. Unlike utility patents, which protect inventions' utility and last up to 20 years with maintenance fees, design patents endure for 15 years from the date of issuance for applications filed on or after May 13, 2015 (or 14 years for earlier ones), with no renewal fees required.^[5] Infringement is assessed via the "ordinary observer" test, where a design is deemed infringing if it induces confusion in an average purchaser familiar with the prior art.^[10] This distinct scope underscores design patents' role in fostering innovation in visual and aesthetic domains while complementing broader intellectual property strategies.

Definition and Scope

Ornamental Designs Protected

A design patent is a form of intellectual property protection granted by the United States Patent and Trademark Office (USPTO) under 35 U.S.C. § 171, covering any new, original, and ornamental design for an article of manufacture.^[3]^[11] This protection focuses exclusively on the visual or aesthetic aspects of the design, safeguarding how an article appears rather than its utilitarian function.^[2] The statutory language emphasizes that the design must be applied to or embodied in an "article of manufacture," a term interpreted broadly to encompass both complete products sold to consumers and their individual components.^[12] Protectable ornamental designs include the shape or configuration of an article, surface ornamentation such as patterns or textures applied to it, or a combination of these elements.^[2] For instance, the curved edges of a smartphone casing or intricate engravings on jewelry may qualify as ornamental if they contribute to the article's aesthetic appeal without serving a functional purpose.^[2] However, features that are primarily functional—such as structural elements necessary for the article's operation—are excluded from protection, as design patents cannot claim aspects dictated solely by utility.^[2] The distinction between ornamental and functional elements is critical: a design element is ornamental if alternative designs could achieve the same function, ensuring that protection does not impede competition or innovation in utilitarian aspects.^[2] In the landmark case Samsung Electronics Co. v. Apple Inc. (2016), the Supreme Court clarified the scope of the "article of manufacture" requirement, ruling that it extends beyond the finished product to include intermediate components, thereby broadening the potential application of design patents to complex, multi-part articles.^[12] This interpretation aligns with the ornamental focus by allowing protection for designs integrated into larger assemblies, provided the claimed elements remain non-functional.

Eligibility Criteria

To qualify for a design patent in the United States, a design must meet the statutory criteria outlined in 35 U.S.C. § 171, which requires it to be new, original, and ornamental in its appearance as applied to an article of manufacture.^[3] The "new" requirement ensures the design has not been previously patented, described in a printed publication, or in public use or on sale anywhere in the world before the effective filing date, while the "original" aspect demands that the design be independently created by the inventor and not copied from existing sources. Additionally, the design must be ornamental rather than functional, meaning it protects the aesthetic aspects of the article rather than its utilitarian features. Novelty is assessed through a comparison of the overall visual impression of the claimed design against prior art, where even minor differences may suffice if they alter the design's appearance to an ordinary observer.^[13] The test focuses on whether the design would have been known or used by others in the United States or patented or published anywhere prior to the date of invention, with the burden on the applicant to demonstrate this absence during examination. For instance, a design that incorporates elements from multiple prior references but combines them in a visually distinct manner may still satisfy novelty if the overall effect is unprecedented. Non-obviousness, governed by 35 U.S.C. § 103, requires that the design not be a mere obvious modification of prior art to a designer of ordinary skill in the relevant field. Prior to 2024, courts applied the rigid Rosen-Durling test, which demanded a single primary reference closely resembling the claimed design (the "Rosen reference") and secondary references showing only minor, obvious differences.^[14] However, in the en banc decision of LKQ Corp. v. GM Global Technology Operations LLC (102 F.4th 1280, Fed. Cir. 2024), the Federal Circuit overruled this approach, adopting the more flexible Graham factors from utility patent law, which consider the scope of prior art, differences between the claimed design and prior art, the level of ordinary skill, and objective indicia of non-obviousness such as commercial success.^[14] This shift allows examiners and courts to weigh combinations of prior art more holistically, potentially broadening the scrutiny of design obviousness while aligning it with § 103's statutory language.^[15] Designs must be represented primarily through drawings or photographs in the patent application, as verbal descriptions alone are insufficient to convey the ornamental appearance.^[16] For partial designs, where only specific portions of an article are claimed, applicants use solid lines to depict the claimed features and broken (dashed) lines for unclaimed environmental or structural elements, ensuring clarity in what is protected without extending to functional or immaterial aspects.^[16] This convention, detailed in USPTO guidelines, prevents ambiguity and aligns with the requirement that the design be applied to an article of manufacture, excluding standalone icons or disembodied features unless tied to a tangible product.^[17]

History and Legal Framework

Origins in the US

The origins of design patents in the United States trace back to the foundational Patent Acts of 1790 and 1793, which established the nation's patent system but primarily addressed utility inventions under broad terms like "useful arts," occasionally encompassing ornamental designs without dedicated provisions.^[18] These early acts laid the groundwork by authorizing exclusive rights for novel inventions, yet they lacked specific mechanisms for protecting aesthetic features, leading to inconsistent application where designs were sometimes granted as utility patents. The need for distinct protection grew amid industrial expansion and design piracy concerns, influenced by European models such as Britain's Statute of Monopolies and emerging design copyright laws.^[18] The first dedicated legislation arrived with the Patent Act of 1842, enacted on August 29, 1842, which explicitly provided for patents on "any new and original design for a manufacture" or ornamental patterns on articles, aiming to safeguard aesthetic innovations in manufactured goods. This act, championed by Patent Commissioner Henry L. Ellsworth and manufacturers facing copying issues, shifted designs from incidental utility coverage to a separate category, with an initial seven-year term renewable for another seven years and a $15 filing fee restricted largely to U.S. citizens or intending residents.^[18] The inaugural design patent, U.S. Patent No. D1, was issued on November 9, 1842, to printer George Bruce for an ornamental typeface, marking the system's practical launch; shortly after, in 1843, the first stove-related design patent was granted to Ezra Ripley for an intricately ornamented parlor stove, exemplifying early industrial applications.^[4]^[19] Early judicial interpretations solidified design patents' independence from utility patents. In the landmark case of Gorham Co. v. White (1871), the U.S. Supreme Court established the "ordinary observer" test for design patent infringement, affirming that protection applies if the overall appearance is substantially the same, focusing on ornamental aspects to deceive the eye of an ordinary observer.^[20] This ruling, building on prior decisions, emphasized that design patents required no proof of utility beyond ornamentality, setting a precedent for their unique scope.^[18] Throughout the 19th and early 20th centuries, design patent law refined through amendments, such as the 1870 Act's classification of terms and the 1902 expansion of eligible subject matter to "any new, original, and ornamental design."^[21] The 1952 Patent Act integrated these protections into Title 35 of the U.S. Code (35 U.S.C. §§ 171–173), codifying eligibility for "any new, original and ornamental design for an article of manufacture" and standardizing the term of protection at 14 years from the date of issuance, while aligning examination standards more closely with utility patents without altering core distinctions.^[3]

Key Legislative Changes

The Patent Act of 1952 represented a major codification of U.S. patent law, including design patents, by enacting 35 U.S.C. §§ 171-173, which defined the scope of protectable ornamental designs and standardized the term of protection at 14 years from the date of issuance.^[22] This legislation consolidated earlier scattered provisions and emphasized that design patents cover only the ornamental aspects of an article of manufacture, distinct from functional utility patents.^[3] Subsequent reforms addressed the duration and procedural aspects of design patents. The Leahy-Smith America Invents Act (AIA) of 2011 shifted the U.S. patent system to a first-inventor-to-file priority standard, applicable to design patents filed on or after March 16, 2013, aligning it more closely with international norms while maintaining the existing 14-year term.^[23] The term was later extended to 15 years from the date of grant by the Patent Law Treaties Implementation Act (PLTIA) of 2012, effective for applications filed on or after May 13, 2015, to harmonize with global standards under the Geneva Act of the Hague Agreement; unlike utility patents, design patents have never required maintenance fees to keep them in force.^[24]^[25] Judicial interpretations have further shaped design patent doctrine. In Samsung Electronics Co. v. Apple Inc. (2016), the Supreme Court unanimously held that the "article of manufacture" for calculating infringement damages under 35 U.S.C. § 289 could include components of a product, not just the entire item sold, potentially limiting total profit awards to infringers in cases like smartphone design disputes.^[12] More recently, in LKQ Corp. v. GM Global Technology Operations LLC (2024), the Federal Circuit, sitting en banc, overruled the rigid Rosen-Durling test for design patent obviousness, adopting instead the flexible Graham factors from 35 U.S.C. § 103 to better assess secondary indicia of nonobviousness, such as commercial success, in evaluating prior art combinations.^[14] In 2024, the U.S. Patent and Trademark Office (USPTO) implemented a specialized design patent practitioner bar, allowing admission based on degrees in fields like industrial or product design, with applications opening on January 2, 2024, to expand access to representation in design matters without the full utility patent bar requirements.^[26]

Application and Examination Process

Filing Requirements

To file a design patent application with the United States Patent and Trademark Office (USPTO), applicants must submit a complete application under 37 CFR 1.153, which includes several essential elements: a specification, drawings or photographs, a single claim, an inventor's oath or declaration, and the required fees.^[16] The specification serves primarily to identify the design and article of manufacture, beginning with a title that designates the particular article (e.g., "Beverage Container"), followed optionally by a brief description of the figures or features if needed for clarity, but no formal written description of the design itself is required beyond a reference to the drawings.^[27] The claim must be singular and phrased in formal terms, such as "The ornamental design for [the article] as shown and described," limiting protection to the depicted ornamental aspects.^[1] An inventor's oath or declaration, compliant with 37 CFR 1.63 or a substitute statement under 37 CFR 1.64, must be executed by each inventor, affirming the application's details and the inventor's entitlement to the design.^[16] Filing fees for a large entity as of 2025 total approximately $1,300, comprising a basic filing fee of $300, a search fee of $300, and an examination fee of $700, with reduced rates for small ($650 total) and micro entities ($325 total); additional surcharges apply for non-electronic filing or excess claims, though design applications are limited to one claim.^[28] Drawings or photographs are a critical component, required to fully disclose the claimed design's appearance from all necessary views (e.g., front, rear, side, top, bottom, and perspective) to enable a skilled artisan to make and use it, in accordance with 37 CFR 1.84 and 1.152.^[1] They must be clear, black-and-white line drawings unless color is essential to the design, in which case color drawings or photographs are permitted with a petition and appropriate specifications under 37 CFR 1.84(a)(2); surface shading via lines or stippling is used to indicate texture or depth, and no descriptive text or measurements should appear unless integral to the design.^[16] Solid lines depict the claimed features of the design, while broken (dashed) lines illustrate unclaimed environmental structure, boundaries, or portions of the article that form no part of the protected ornamental design, ensuring the scope is precisely delimited.^[1] For U.S. applicants, a foreign filing license is automatically granted upon submission of the design patent application under 35 U.S.C. § 184, permitting subsequent filings abroad without prior approval, provided the invention is not subject to security restrictions that require a secrecy order or special handling by the USPTO.^[29]

Examination Procedure

Upon submission of a design patent application, it is assigned to a design examiner within the United States Patent and Trademark Office's (USPTO) Technology Center 2900 for review.^[13] The examiner conducts a substantive examination to determine compliance with statutory requirements under 35 U.S.C. § 171, focusing primarily on the ornamental aspects of the claimed design.^[13] This process includes a thorough search for prior art to assess novelty and nonobviousness, utilizing USPTO databases such as PatFT and AppFT, as well as design and mechanical patent classes, catalogs, trade journals, and international sources like foreign patent offices.^[13] If the application fails to meet patentability criteria, the examiner issues an Office action detailing the grounds for rejection. Common rejections include lack of novelty under 35 U.S.C. § 102, where the claimed design is anticipated by a single prior art reference; obviousness under 35 U.S.C. § 103, evaluated using the flexible Graham factors and KSR principles following the Federal Circuit's 2024 decision in LKQ Corp. v. GM Global Technology Operations LLC, which overruled the rigid Rosen-Durling test; and indefiniteness under 35 U.S.C. § 112(b) due to unclear claims or drawings.^[13]^[14] Additionally, rejections may arise from double patenting under 35 U.S.C. § 171 or issues with the scope of the claim.^[13] In response to a rejection, the applicant may submit amendments to the drawings or claim before a final Office action, provided no new matter is introduced per 35 U.S.C. § 132, and the changes are supported by the original disclosure.^[13] The examiner then issues a subsequent action acknowledging the amendments or issuing a notice of allowability if the application is deemed patentable.^[13] The average total pendency for design patent applications, from filing to disposition, is approximately 21.5 months as of fiscal year 2025 data.^[9] Examination of design patents does not involve substantive review of functionality beyond ensuring the design is primarily ornamental, as functional features cannot support patentability and are rejected if they dictate the overall appearance.^[13] The allowance rate for design patents stands at around 84% for fiscal year 2025 year-to-date.^[9]

Publication and Secrecy Practices

In the United States, design patent applications are maintained in secrecy throughout the examination process and are not published prior to issuance, as stipulated under 35 U.S.C. § 122(b)(1), which exempts design applications from the pre-grant publication requirement applicable to utility patents. This practice preserves the confidentiality of the ornamental design until the patent is granted, thereby protecting the novelty of the invention from potential copying or prior art invalidation during the pendency period. Upon grant, the issued design patent is published in the Official Gazette of the United States Patent and Trademark Office (USPTO), making the drawings and specifications publicly available. Internationally, secrecy practices for design applications vary by jurisdiction. In China, design patent applications remain confidential until the patent is granted, with no pre-grant publication to safeguard the applicant's competitive edge. Similarly, Canada and Japan uphold secrecy until issuance, ensuring that the design details are not disclosed during examination. In Brazil, industrial design applications are published approximately 60 days after filing in the Official Gazette for third-party observations, with a 180-day grace period for novelty based on prior disclosures. In contrast, the European Union publishes registered EU design applications (formerly Registered Community Designs) upon registration following formal examination, typically shortly after filing, unless the applicant requests deferment of publication for up to 30 months; as of the 2024 EU Design Regulation amendments (effective December 2024), the terminology has shifted to Registered EU Design, with enhanced provisions for digital and AI-generated designs.^[30] Exceptions to these secrecy rules exist in certain scenarios. Applicants may opt for defensive publications, such as statutory invention registrations, to establish prior art without pursuing full patent protection, though this is rare for designs due to their visual nature. Voluntary disclosures by the applicant, such as in marketing materials, can also terminate secrecy but risk invalidating the application if they occur before filing. Such disclosures impact prior art status by potentially barring subsequent claims to the same design under novelty requirements.

Duration and Rights

Term of Protection

In the United States, the term of protection for a design patent is 15 years from the date of grant, as specified in 35 U.S.C. § 173.^[22] This duration applies to design patents issued on applications filed on or after May 13, 2015, pursuant to the Patent Law Treaties Implementation Act of 2012.^[5] For design patents granted from applications filed before that date, the term is 14 years from the date of issuance.^[5] Unlike utility patents, design patents do not require the payment of maintenance fees to keep the protection in force during their term.^[31] There are also no provisions for term extensions or adjustments, such as those available for utility patents delayed by USPTO processing or regulatory review.^[5] Upon expiration of the design patent term, the protected ornamental design enters the public domain, allowing unrestricted use, reproduction, or commercialization by anyone without permission from the former patent holder.^[32] This expiration is final, with no mechanism for retroactive revival or alteration of the term once it has lapsed.^[32] Design patent protection can overlap with trademark rights, such as trade dress, which may provide indefinite exclusivity for the same design elements if they function as source identifiers in commerce, provided trademark requirements are met.^[33]

Infringement Standards

Design patent infringement occurs when an unauthorized party makes, uses, offers to sell, sells, or imports an article that embodies a patented design or a colorable imitation thereof, as determined by the ordinary observer test established by the U.S. Supreme Court in Gorham Manufacturing Co. v. White (81 U.S. 511, 1871). Under this test, infringement is found if, in the eye of an ordinary observer familiar with the prior art, the patented design and the accused article are substantially the same, such that the ordinary observer would be deceived into confusing the two.^[34] The Federal Circuit refined this standard in Egyptian Goddess, Inc. v. Swisa, Inc. (543 F.3d 665, 2008), eliminating the former "point of novelty" test and emphasizing a holistic comparison of the overall visual appearance of the claimed and accused designs, informed by the prior art.^[34] In applying the test, courts consider the scope of the patent claim as depicted in the drawings, where solid lines denote claimed ornamental features and broken lines disclaim unclaimed or functional elements to avoid extending protection to non-ornamental aspects. For damages, design patent owners may elect to recover the infringer's total profit derived from the sale of the infringing article of manufacture under 35 U.S.C. § 289, with a minimum award of $250 if profits cannot be ascertained (and no enhancement for willfulness). Alternatively, they may seek damages adequate to compensate for the infringement under 35 U.S.C. § 284, such as the patentee's lost profits or a reasonable royalty.^[35]^[36] Unlike utility patents, the § 289 disgorgement remedy focuses solely on the infringer's profits. For willful infringement, if electing recovery under § 284, courts may enhance damages up to three times the amount, applying the same provision available for utility patents as clarified in Halo Electronics, Inc. v. Pulse Electronics, Inc. (2016).^[37] Additionally, in exceptional cases—such as those involving unreasonable litigation conduct—courts may award reasonable attorney fees to the prevailing party under 35 U.S.C. § 285. In Samsung Electronics Co. v. Apple Inc. (580 U.S. 52, 2016), the Supreme Court clarified that the "article of manufacture" for calculating total profit under § 289 may be a component of a multicomponent product, such as a smartphone screen, rather than the entire product, thereby limiting damages to profits attributable to the infringing part.^[38] Injunctive relief to prevent ongoing infringement is available but granted sparingly, following the four-factor equitable test articulated by the Supreme Court in eBay Inc. v. MercExchange, L.L.C. (547 U.S. 388, 2006), which requires showing irreparable injury, inadequate monetary remedies, balance of hardships favoring the patentee, and public interest.^[39] Post-eBay, permanent injunctions in design patent cases have become rare, particularly where the patentee does not practice the design or where design-arounds are feasible.^[40] Common defenses against design patent infringement claims include invalidity based on prior art and the functionality doctrine. A design patent may be invalidated if the claimed design would have been obvious to a designer of ordinary skill in light of prior art under 35 U.S.C. § 103, or if it lacks novelty under § 102. The functionality doctrine renders a design unpatentable if its overall appearance is dictated primarily by functional considerations rather than ornamentality, as protection extends only to novel, non-functional designs; courts assess this by examining whether alternative designs exist that achieve the same function with different aesthetics.^[41]

Design Patents in Modern Contexts

Computer-Generated and Digital Designs

Design patents extend protection to computer-generated visuals such as fonts, icons, and screen displays when these elements are embodied in an "article of manufacture," typically a tangible medium like a computer display screen or electronic device. According to the United States Patent and Trademark Office (USPTO), standalone images or virtual representations are ineligible, but designs integrated into a programmed article—such as a graphical user interface (GUI) on a monitor—are considered statutory subject matter under 35 U.S.C. § 171. For instance, typeface designs qualify as ornamental surface ornamentation applicable to printed or digital media, provided they meet novelty and nonobviousness requirements. The principle from the Federal Circuit's In re Nuijten decision (2007), which excluded transitory signals from utility patent eligibility, reinforces that digital designs must be fixed in a physical article to avoid similar rejection, though GUIs displayed on screens have been consistently affirmed as protectable when tied to the hardware. USPTO guidelines, outlined in the Manual of Patent Examining Procedure (MPEP) § 1504.01(a), require drawings of computer-generated designs to illustrate the image as an active component of the article, using solid lines for claimed ornamental features and broken lines for unclaimed portions like the surrounding display panel or environmental structure. This approach accommodates transitory images, such as animated icons or sequential screen displays, by depicting them in multiple views or states while clearly delineating boundaries. A representative example is Apple's U.S. Design Patent No. D604,305, which claims the ornamental arrangement of a grid of 16 colorful icons on a black rectangular screen; broken lines denote the unclaimed device bezel and background, emphasizing the visual layout as surface ornamentation.^[42] Distinguishing ornamental from functional aspects poses significant challenges in examining and enforcing these patents, as design protection is limited to aesthetic features and excludes any underlying code or processes that dictate functionality. Courts and the USPTO apply the functionality doctrine to invalidate claims where the design's appearance is primarily driven by utilitarian considerations, such as user interface efficiency, ensuring that pure algorithms or software logic remain unprotected under design law. For computer icons and GUIs, examiners scrutinize whether the visual elements serve merely decorative purposes or embody essential operations, often requiring evidence like alternative designs to demonstrate ornamentality. Filings for digital designs have surged since 2015, driven by advancements in software interfaces, with overall USPTO design patent applications increasing from about 40,000 in fiscal year 2016 to approximately 60,000 in fiscal year 2025, reflecting broader adoption of protections for computer-related visuals amid evolving technology.^[43]

Applications in Emerging Technologies

Design patents are increasingly applied to protect the ornamental aspects of augmented reality (AR) and virtual reality (VR) technologies, focusing on the visual layouts of headsets, holographic displays, and user interfaces within immersive environments. These protections cover the aesthetic configurations that enhance user experience without encroaching on functional elements, such as the ergonomic shaping of VR head-mounted displays or the stylized arrangement of holographic projections. For example, Meta Platforms, Inc. holds design patents like USD701206S1 for the ornamental design of a VR headset, emphasizing sleek contours and interface placements that define the device's appearance. Similarly, numerous design patents for graphical user interfaces (GUIs) on display screens, such as those granted to Meta in 2025 (e.g., for animated VR interaction elements), illustrate how ornamental designs can safeguard the look of virtual overlays in AR/VR systems.^[44]^[45] In the realm of AI-generated designs, eligibility for design patent protection requires substantial human involvement to establish originality and inventorship. The USPTO's 2024 guidance on AI-assisted inventions clarifies that while AI tools can aid in creating designs, only natural persons who make significant contributions—such as modifying AI outputs, selecting key features, or conceiving the overall ornamental concept—can be named inventors under 35 U.S.C. § 101.^[46] This ensures that designs generated with AI, like algorithmically optimized VR interface layouts, remain attributable to human ingenuity, preventing AI systems from being listed as inventors as affirmed in Federal Circuit rulings such as Thaler v. Vidal. Key challenges in applying design patents to AR/VR include the transitory nature of digital experiences, where virtual elements may appear ephemeral and not fixed in a tangible article of manufacture as required by 35 U.S.C. § 171.^[47] USPTO supplemental guidance addresses this by requiring claimed designs, such as dynamic GUIs in VR, to be embodied in a concrete medium like a headset display to qualify for protection, excluding purely disembodied or transient signals.^[48] Another hurdle is delineating ornamental features from functional ones in interactive elements, such as gesture-responsive holograms, where examiners scrutinize claims to avoid overprotecting utility.^[49] In 2025, the USPTO eliminated expedited examination for design patent applications, effective August 14, following a suspension in April, to manage rising workloads and backlog. This change, driven by increased filings in emerging technologies like AR/VR wearables, may extend examination times but aims to ensure consistent quality amid surging demand.^[50]^[51] Filings for design patents in wearable technologies, particularly those integrating AR/VR capabilities, surged in 2024, with overall U.S. design patent issuances rising approximately 40% amid growing innovation in immersive wearables.^[52] This uptick reflects the sector's expansion, driven by devices like smart glasses and haptic suits, where ornamental designs protect distinctive visual elements to foster competitive differentiation. Federal Circuit precedents and USPTO practices affirm protection for dynamic interfaces, such as animated VR displays, provided they are fixed in a substrate like a screen or headset, thereby extending design law to these evolving mediums without altering core eligibility standards.^[53]

International Design Protection

Registered Designs in Other Countries

In major non-US jurisdictions, design protection systems vary in registration processes, terms, and requirements, often emphasizing rapid grant and territorial scope while differing from the US model in areas like novelty standards and secrecy options. Globally, industrial design filings reached approximately 1.2 million applications in 2023, encompassing an estimated 1.5 million individual designs, with China accounting for over half of the total.^[54] The European Union provides two forms of Community design protection administered by the European Union Intellectual Property Office (EUIPO): an unregistered design offering 3 years of automatic protection from the date of first public disclosure, based solely on novelty, and a registered design that grants exclusive rights for an initial 5 years, renewable in 5-year increments up to a maximum of 25 years.^[55] Registered Community designs require absolute novelty—meaning no prior disclosure worldwide—and individual character, where the overall impression on an informed user differs from existing designs, with protection focused exclusively on aesthetic features without a functionality exclusion akin to some other systems.^[56] A single registration covers all 27 EU member states, facilitating uniform enforcement.^[57] In the United Kingdom, registered designs filed with the UK Intellectual Property Office (UKIPO) receive initial protection for 5 years from the filing date, renewable up to a maximum term of 25 years through periodic fees, protecting the design's appearance against unauthorized use in the UK.^[58] The system requires novelty relative to prior art and originality, with a 12-month grace period applies for the applicant's own disclosures (or those by successors in title), though independent third-party publications destroy novelty.^[59] Japan's design registration system, managed by the Japan Patent Office (JPO), offers protection for up to 25 years from the filing date, with renewals every 5 years after an initial 5-year term. Unique features include partial design protection, which safeguards specific components of a product (such as a smartphone button) independently of the whole, and a secret design system allowing applicants to delay publication of the registered design for up to 3 years from the date of registration, providing a contrast to US practices where non-publication is limited and requires no foreign counterpart filing. Novelty is assessed on a first-to-file basis with absolute standards, excluding functional aspects.^[60] China's design patent system, overseen by the China National Intellectual Property Administration (CNIPA), features rapid substantive examination and grant, typically within 6 to 12 months from filing, making it one of the fastest globally.^[61] Protection lasts 15 years from filing without renewal, ensuring local precedence in this first-to-file jurisdiction.^[62] Designs must be novel and aesthetically oriented, with brief descriptions permitted alongside drawings. In India, the design registration process through the Office of the Controller General of Patents, Designs and Trade Marks typically completes in 6 to 12 months, involving formal examination for novelty and originality without substantive search.^[63] Initial protection is for 10 years from filing, extendable by 5 years, covering the shape, configuration, pattern, or ornamentation applied to an article. Novelty is assessed against worldwide prior art, with no functionality bar. Australia's registered design system, administered by IP Australia, provides protection for an initial 5 years from filing, renewable once for an additional 5 years to a maximum term of 10 years.^[64] Designs must be new and distinctive, assessed against global prior art, with protection limited to visual features distinguishing the product in the marketplace.^[65]

International Treaties and Harmonization

The Paris Convention for the Protection of Industrial Property, signed in 1883, forms the cornerstone of international cooperation on industrial designs by establishing principles of national treatment and priority rights.^[66] Under national treatment, each member state must accord foreign applicants for design protection the same rights and protections as its own nationals, without discrimination based on nationality.^[66] Additionally, the Convention grants a six-month priority period for industrial designs, allowing applicants to file subsequent applications in other member countries within this timeframe and claim the filing date of the initial application for priority purposes.^[67] The Hague Agreement Concerning the International Registration of Industrial Designs, first established in 1925 and administered by the World Intellectual Property Organization (WIPO), provides a centralized mechanism for obtaining design protection across multiple jurisdictions through a single international application.^[68] This system enables applicants to register up to 100 designs in a unified filing, designating protection in up to 99 countries across 82 contracting parties as of 2025, streamlining the process and reducing administrative burdens.^[69] Prominent members include the European Union, the United States, and China, which together account for a significant portion of global design filings under the Agreement.^[70] The United States acceded to the Hague Agreement in 2015, effective May 13, marking a key expansion of the system's reach to one of the world's largest design markets.^[71] Complementing these treaties, the Locarno Agreement of 1968 establishes an international classification system for industrial designs, dividing them into 32 main classes based on product types to standardize descriptions and improve search efficiency in patent offices worldwide.^[72] This classification, revised periodically, facilitates harmonized examination by grouping similar designs—such as those for furniture in Class 05 or graphic symbols in Class 32—enabling consistent global indexing and prior art retrieval without imposing uniform substantive criteria.^[73] Recent developments under the Hague System include WIPO's 2024 amendments to its administrative instructions, which refine procedural rules for international registrations and support enhanced digital processing to accommodate growing filings, reaching a record 27,161 designs in 2024. In November 2024, WIPO member states adopted the Riyadh Design Law Treaty to standardize procedural requirements for design applications across countries, promoting further harmonization.^[74]^[75]^[76] Despite these procedural advancements, no comprehensive global harmonization exists for design protection terms or substantive tests, as individual countries retain autonomy over protection durations—ranging from 10 to 25 years—and criteria for novelty and originality, necessitating separate compliance with national laws even under international filings.^[77]

Comparisons to Other IP Forms

Utility Patents

Utility patents, governed by 35 U.S.C. § 101, protect the functional aspects of inventions, including any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.^[78] These patents safeguard how an invention works, its structure, or its composition, requiring the specification to enable a person skilled in the art to make and use the invention (enablement) and to disclose the best mode contemplated by the inventor for carrying it out.^[79]^[80] The term of protection for a utility patent is 20 years from the filing date of the application, subject to maintenance fees paid at 3.5, 7.5, and 11.5 years after issuance to keep it in force.^[81] In contrast to design patents, which exclusively cover the ornamental appearance of an article without regard to its utility, utility patents require detailed written claims that precisely define the scope of the protected invention and undergo a rigorous examination process.^[82] Key differences include the scope of protection—utility patents address functional innovations, while design patents do not permit claims related to utility—and procedural aspects, such as design patents having a shorter 15-year term from issuance with no maintenance fees required and generally easier examination due to their focus on visual representations rather than functional descriptions.^[83] Utility patent applications also number significantly more than design applications annually; for example, in fiscal year 2023, the USPTO received 594,143 new utility patent applications compared to 53,665 design patent applications.^[84]^[85] Overlap between the two can arise when an invention has both functional and ornamental elements, but functional features are unprotectable under design patents, as they must be primarily ornamental to qualify.^[86] In the case of Best Lock Corp. v. Ilco Unican Corp. (94 F.3d 1563, Fed. Cir. 1996), the Federal Circuit invalidated a design patent for a key blade blank because its configuration was dictated by functional considerations rather than ornamental design, emphasizing that purely functional aspects cannot be claimed as designs.^[86] Utility patents further incorporate prosecution history estoppel, a doctrine that limits the range of equivalents available during infringement litigation based on amendments or arguments made during examination to overcome rejections, thereby preventing patentees from recapturing surrendered subject matter.^[87] This estoppel applies specifically to the interpretation of written claims in utility patents, which are absent in design patents that rely instead on drawings for protection.^[82]

Copyright Protection

Copyright protection under United States law, as defined in 17 U.S.C. § 102, extends to original works of authorship fixed in any tangible medium of expression, including pictorial, graphic, and sculptural works such as artistic sculptures or two-dimensional designs.^[88] This protection automatically subsists upon creation of the work without the need for registration, though registration with the U.S. Copyright Office is advisable to enable statutory damages and attorney's fees in infringement actions.^[89] For works created by individual authors, the term of protection lasts for the author's life plus 70 years; for anonymous works, pseudonymous works, or works made for hire, it endures for 95 years from publication or 120 years from creation, whichever is shorter.^[90] In contrast to design patents, which safeguard the ornamental appearance of an article of manufacture under 35 U.S.C. § 171 and require the design to be applied to a functional item, copyright law excludes protection for "useful articles" where the design and the article's utilitarian function cannot be separated. Copyright applies to two- and three-dimensional artistic expressions that are not primarily functional, as determined by the separability test established by the U.S. Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc. (2017), which asks whether the artistic feature can be perceived as a two-dimensional work of art separate from the useful article and would qualify as protectable if imagined independently on a canvas.^[91] In that case, the Court held that decorative elements like chevrons and stripes on cheerleading uniforms were separable and thus copyrightable, as their placement did not enhance the garments' function as apparel.^[91] There is potential overlap between design patents and copyright for ornamental designs incorporated into useful articles, allowing creators to seek both forms of protection where the artistic elements meet copyright's separability requirements and the overall appearance qualifies as new, original, and ornamental under patent law.^[33] However, purely artistic designs ineligible for design patents—such as standalone sculptures not applied to manufactured articles—may receive full copyright protection, while useful articles receive only partial copyright coverage limited to separable features.^[33] Copyright law provides no monopoly on underlying ideas, concepts, or shapes themselves, protecting only the specific expression of those elements, as explicitly stated in 17 U.S.C. § 102(b).^[88] Additionally, defenses against copyright infringement are broader than those for design patent infringement, with fair use under 17 U.S.C. § 107 serving as an affirmative defense that permits limited use of a work without permission based on four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality used, and the effect on the potential market.^[92] In patent cases, infringement is typically strict liability with narrower defenses focused on invalidity or non-infringement, lacking an equivalent to fair use's flexible balancing.^[93]

Trademarks and Trade Dress

Trademarks, as governed by the Lanham Act (15 U.S.C. §§ 1051 et seq.), protect distinctive words, symbols, or designs that identify the source of goods or services, offering indefinite duration provided the mark remains in use and is renewed periodically. Trade dress, a form of trademark protection under the same statute, safeguards the overall look and feel of a product's packaging or configuration when it serves a source-identifying function, such as the iconic curved shape of the Coca-Cola bottle.^[94] Unlike design patents, which emphasize the novelty of an ornamental design to promote innovation, trademarks and trade dress prioritize preventing consumer confusion by associating a distinctive appearance exclusively with a brand.^[95] Key differences arise in the requirements for protection: design patents demand novelty, non-obviousness, and a fixed term of exclusivity, whereas trademarks for product shapes typically require evidence of secondary meaning—where consumers recognize the design as indicating a specific source—and must avoid any functional aspects that could limit competition.^[96] The U.S. Supreme Court in Wal-Mart Stores, Inc. v. Samara Brothers, Inc. (2000) clarified that product designs cannot be inherently distinctive for trade dress purposes and thus necessitate proof of secondary meaning to qualify for protection.^[97] This functionality doctrine further distinguishes trade dress, as elements essential to a product's utility or cost-effective manufacture are ineligible, in contrast to design patents' focus solely on aesthetic appeal.^[98] Given these distinctions, businesses frequently pursue overlapping or sequential intellectual property strategies, securing a design patent for short-term monopoly rights over a novel design and transitioning to trademark or trade dress protection thereafter to achieve potentially perpetual safeguarding once secondary meaning develops in the marketplace.^[99] Such hybrid approaches allow initial innovation incentives via patents followed by enduring brand protection, particularly useful for consumer products where visual distinctiveness builds long-term equity.^[100] As of 2025, USPTO filings and litigation trends in consumer goods sectors like fashion demonstrate increasing adoption of these hybrid strategies to layer protections against copying.^[101]

Notable Examples and Cases

Famous Design Patents

One of the most iconic design patents in history is U.S. Design Patent No. D48,160, granted on November 16, 1915, to Alexander C. Samuelson and assigned to the Root Glass Company of Terre Haute, Indiana. This patent protected the distinctive contour bottle shape for Coca-Cola, featuring a curved, hobble-skirt silhouette inspired by the cocoa pod to create an instantly recognizable form even in the dark or broken. The design played a pivotal role in branding, helping Coca-Cola differentiate its product from imitators and establishing a visual identity that became synonymous with the brand's global success.^[102]^[103] Another landmark example is U.S. Design Patent No. D11,023, issued on February 18, 1879, to French sculptor Frédéric-Auguste Bartholdi of Paris. Titled "Design for a Statue," it covered the monumental figure of Liberty Enlightening the World, now known as the Statue of Liberty, depicting a robed woman holding a torch aloft with chains at her feet to symbolize freedom from tyranny. Assigned to Bartholdi personally, the patent facilitated fundraising and protected reproductions of the design, contributing to the statue's construction as a gift from France to the United States and its enduring status as a cultural emblem of liberty and international cooperation.^[104]^[105] In the realm of modern technology, U.S. Design Patent No. D593,087, filed on January 5, 2007, and granted on May 26, 2009, to Apple Inc. of Cupertino, California, exemplifies innovative consumer electronics design. This patent safeguards the ornamental appearance of an electronic device, prominently featuring the iPhone's sleek front face with rounded corners, a full-screen display, central home button, and minimal bezels, defining the minimalist aesthetic that revolutionized smartphone interfaces. Its impact extended to the industry by setting standards for touch-enabled, edge-to-edge displays, influencing countless mobile devices and underscoring design's role in user experience and market dominance.^[106]^[107] These famous design patents highlight broader cultural influences on aesthetics, particularly in the early 20th century when Art Deco styles permeated U.S. industrial designs. Patents from the 1920s and 1930s often incorporated Art Deco's geometric motifs, streamlined forms, and luxurious materials, seen in examples like ornate bottle designs and furniture with zigzags and sunbursts, reflecting the era's optimism and machine-age modernity. Such influences elevated everyday objects into symbols of progress, shaping consumer tastes in categories like furnishings and household goods.^[108]^[109] By September 2023, the United States Patent and Trademark Office had issued its 1,000,000th design patent, with approximately 25,919 more granted in fiscal year 2024 alone, bringing the cumulative total well beyond 1 million by late 2025. Among the top categories, furniture (under Class D6) and electronics (under Class D14) consistently rank high, accounting for a significant portion of grants due to their emphasis on ornamental innovation in consumer products.^[110]^[9]^[108]

Significant Litigation and Recent Developments

One of the most prominent design patent litigations is Apple Inc. v. Samsung Electronics Co., initiated in 2011, which centered on Samsung's alleged infringement of Apple's smartphone and tablet designs, including the "trade dress" elements protected by design patents such as U.S. Patent Nos. D593,087 (rectangular rounded smartphone) and D504,889 (grid of icons). A 2012 jury verdict awarded Apple over $1 billion in damages, with a significant portion—approximately $399 million—attributable to the design patent infringements after appeals. The U.S. Supreme Court in 2016 clarified that damages for design patent infringement under 35 U.S.C. § 289 are limited to the infringer's total profit on the "article of manufacture" to which the patented design is applied, reversing a Federal Circuit ruling that had tied damages solely to the smartphone component. The case concluded in 2018 with Samsung paying Apple $548 million in total damages, marking a landmark for high-stakes design enforcement in consumer electronics. In the footwear industry, Crocs, Inc. v. Effervescent, Inc. (doing business as USA Dawgs) exemplifies recent infringement disputes, stemming from a long-running battle over Crocs' foam clog designs protected by U.S. Design Patent No. D619,402. Filed in 2023 amid counterclaims of false advertising, the case centered on Dawgs' allegations that Crocs falsely claimed its Croslite material was "patented." The Federal Circuit in October 2024 reversed the district court's dismissal of the false advertising counterclaim, holding that misleading "patented" claims on product features can support Lanham Act causes of action, though it remanded for further proceedings. In July 2025, Crocs petitioned the U.S. Supreme Court for certiorari to review the decision.^[111]^[112] A pivotal recent development occurred in May 2024 when the U.S. Court of Appeals for the Federal Circuit, sitting en banc in LKQ Corporation v. GM Global Technology Operations LLC, overruled the longstanding Rosen-Durling test for design patent obviousness under 35 U.S.C. § 103, adopting a more flexible, multi-factor approach aligned with the Supreme Court's KSR International Co. v. Teleflex Inc. framework for utility patents. This decision, the first en banc Federal Circuit ruling on design patents in over 14 years, evaluates obviousness by considering the overall visual impression of prior art designs, ordinary skill in the art, and secondary indicia of nonobviousness, potentially lowering the bar for invalidating design patents. The ruling arose from LKQ's challenge to GM's U.S. Design Patent No. D797,654 for a pickup truck fender, where the Patent Trial and Appeal Board had upheld validity under the prior rigid test. Design patent litigation filings surged 35% in 2024, exceeding 450 cases, according to Lex Machina's analysis, driven by increased enforcement against e-commerce counterfeiters selling infringing products on platforms like Amazon. Many suits now target anonymous online sellers using "Schedule A" filings to name multiple defendants efficiently, reflecting a shift toward rapid resolution of counterfeit disputes in consumer goods sectors. Concurrently, trends show rising suits over digital designs, such as graphical user interfaces (GUIs) in mobile apps; for instance, the Patent Trial and Appeal Board in 2023 invalidated claims in U.S. Design Patent No. D930,702 for an animated payment app GUI, citing anticipation by prior app icons, underscoring challenges in protecting ephemeral digital elements.^[113] In 2025, the U.S. Patent and Trademark Office (USPTO) reported reductions in design patent pendency, with average total pendency dropping to under 20 months through initiatives like accelerated post-issue fee processing (now two weeks instead of three) and a new Streamlined Claim Set Pilot Program. Additionally, the USPTO launched a dedicated design patent bar in January 2024, allowing practitioners with degrees in industrial or product design to register solely for design matters after passing a specialized exam, broadening access to prosecution expertise without requiring a full patent bar.

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Wal-Mart Stores, Inc. v. Samara Brothers, Inc. | 529 U.S. 205 (2000)
In this case, we decide under what circumstances a product's design is distinctive, and therefore protectible, in an action for infringement of unregistered ...
[90]
Yin and Yang: Design Patents and Trade Dress Rights - Finnegan
Jul 27, 2015 · Design patents and trade dress serve different purposes within IP law. The purpose of design patent protection is to encourage innovation.
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[PDF] Combining Design Patents and Trademarks to Protect Your ...
This article addresses the relationship between design patent protection and trademark protection and described the strategy of using the combination of these ...
[92]
Protect Your Product Design Using Both Patents and Trademarks
Aug 9, 2001 · The combination of patent and trademark protection provides a broader level of investment protection then either property right alone could provide.
[93]
Fashion Law: IP, Sustainability & Emerging Business Models
Jul 15, 2025 · Brands are increasingly turning to trademark dilution claims, trade dress litigation, and utility or design patents to defend their assets.
[94]
USD48160S - A bottle or similar article - Google Patents
DESIGN. A. SAMUELSON. BOTTLE 0R SIMILAR ARTICLE. APPLICATION FILED AUG. 18. 1915 Patented Nov. 16, 1915. ... UNITED STATES PATENT OFFICE. ALEXANDER SAMUELSON, OI ...Missing: impact | Show results with:impact
[95]
The Coke Bottle at 100: See Coca-Cola's Original 1915 Patent | TIME
Nov 16, 2015 · It was exactly a century ago Monday that the U.S. Patent Office granted design patent No. 48,160 to the Root Glass Company of Terre Haute, Ind.Missing: USD48, 160 impact
[96]
USD11023S - Design for a statue - Google Patents
A design of a monumental statue, representing Liberty enlightening the world, being intended as a commenorative monument of the independence of the United ...Missing: USD11, 023 impact
[97]
The Statue of Liberty Was Once Patented - Smithsonian Magazine
Feb 17, 2017 · USD11023 was issued to the French designer of the statue, Frédéric-Auguste Bartholdi, whose “Liberty Enlightening the World” has stood overlooking New York ...Missing: USD11, 023
[98]
Electronic device - USD593087S1 - Google Patents
The broken lines showing the remainder of the electronic device are directed to environment. The broken lines, within the claimed design, in embodiments 1, ...Patent citations (79) · Non-patent citations (40) · Cited by (347)
[99]
Supreme Court Rules on Design Patent Infringement Damages
Apple sued Samsung in 2011, alleging, inter alia, that various Samsung smartphones infringed Apple'sD593,087, D618,677, and D604,305 design patents. The ...
[100]
Class Definition for Class D06 - FURNISHINGS - USPTO
This class provides for design patents claiming ornamental designs for: 1. Mirror, frame, picture mount, or easel-type support 2. Apparel support 3. Furniture, ...
[101]
Art Deco Bottle Patents, vol. 1, 1925-31 - Perfumes, Milk ... - eBay
In stockWithin this initial volume, 40 patents and 544 design patents and 1 re-issue for bottles or similar articles are presented as individual entries in numerical ...
[102]
Combing Through Design Patents - Quarles
Oct 17, 2023 · As illustrated by the graph of USPTO Design Patent Activity below, annual filing numbers have increased by approximately 20% over the past five ...