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How Is Design Patent Different From Utility Patent?

How is Design Patent Different From Utility Patent?

Design patents protect how something looks, while utility patents protect how something operates and the way it is constructed.  Consequently, to obtain a design patent, the applicant must meet different requirements; the invention must still be novel and non-obvious, but it must also be original and an ornamental design of a useful item.  

Here’s some information to guide your design patent application:

  • Originality is not merely imitating something already constructed or naturally occurring.  However, courts have defined “original” loosely.  
  • Design cannot be dictated by the item’s function.  
  • The design must be visible during intended and usual use of the item, or at important commercial times, such as when you offer to sell the item.  
  • The item must be man-made.  
  • You cannot design patent paintings, photographs, decals or silk-screened items.
  • Factors in determining obvious are, for the most part, similar to those under a utility patent.  Examples of non-obvious may include:
    • using an unexpected medium;
    • omitting a particular design element thought to be crucial; or 
    • creating a new juxtaposition of design elements.
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