Design patents are provided for in 35 U.S.C. chapter 16. In addition, international design applications filed under the Hague Agreement Concerning the International Registration of Industrial Designs (“Hague Agreement”) are provided for in 35 U.S.C. chapter 38. Certain statutory provisions in 35 U.S.C. chapter 38 provide for the applicability of the provisions of 35 U.S.C. chapter 16 to international design applications. See 35 U.S.C. 382(c), 383, and 389(b). See MPEP Chapter 2900 for additional information concerning international design applications.
The right to a patent for a design stems from:
35 U.S.C. 171 Patents for designs.
- (a) IN GENERAL.—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.
- (b) APPLICABILITY OF THIS TITLE.—The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.
- (c) FILING DATE.—The filing date of an application for patent for design shall be the date on which the specification as prescribed by section 112 and any required drawings are filed.
For design applications filed under 35 U.S.C. chapter 16:
37 CFR 1.151 Rules applicable.
The rules relating to applications for patents for other inventions or discoveries are also applicable to applications for patents for designs except as otherwise provided.
For international design applications designating the United States:
37 CFR 1.1061 Rules applicable.
- (a) The rules relating to applications for patents for other inventions or discoveries are also applicable to international design applications designating the United States, except as otherwise provided in this chapter or required by the Articles or Regulations.
- (b) The provisions of § 1.74, § 1.84, except for § 1.84(c), and §§ 1.152 through 1.154 shall not apply to international design applications.
Other rules relating only to design applications, such as 37 CFR 1.152–1.155 and those contained in 37 CFR Part 1, Subpart I, are reproduced in the sections of this chapter and in MPEP Chapter 2900, as appropriate.
It is noted that design patent applications are not included in the Patent Cooperation Treaty (PCT), and the procedures followed for PCT international applications are not to be followed for design patent applications.
The practices set forth in other chapters of this Manual of Patent Examining Procedure (MPEP) are to be followed in examining applications for design patents, except as particularly pointed out in this chapter or in MPEP Chapter 2900. Also, with respect to international design applications that designate the United States, 35 U.S.C. 389(b) provides that “[a]ll questions of substance and, unless otherwise required by the treaty and Regulations, procedures regarding an international design application designating the United States shall be determined as in the case of applications filed under chapter 16.” Accordingly, many of the practices set forth in this chapter, such as those pertaining to examination in MPEP § 1504, are applicable to international design applications that designate the United States. Differences in practices are noted in this chapter where applicable.