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.