The details of design patents are discussed here. Design patents protect the way an article "looks" as opposed to how an article "works" (which is provided in a utility patent). The design must be embodied in or applied to an article or manufacture, it cannot exist alone.

A few of the unique properties of design patents include that; they only have a 14 year term, maintenance fees are not required, provisional applications for designs may not be filed, and design patents only have one claim.

The PTO may ask a question pertaining to the differences between design patents and utility patents. Be careful when answering any question about patent terms, they may sneak design patents in a choice hoping you won't notice. The PTO will most likely ask at least one question on the elements of an application and their proper order, sometimes they will choose design patents for this question.

1501 Statutes and rules applicable
design patent applications are not included in the Patent Cooperation Treaty (PCT), therefore the procedures followed for PCT international application are not to be followed for design patent applications

1502 Definition of a design
A "utility patent" protects the way an article is used and works while a "design patent" protects the way an article looks. Design is inseparable from the article to which it is applied and cannot exist alone merely as a scheme of surface ornamentation. It must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method.

35 U.S.C. 171 Patents for designs.
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. The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.

to qualify for a design patent, the claimed subject matter is the design embodied in or applied to an article or manufacture and not the article itself

design patents must be:
ornamental
novel
nonobvious under 35 U.S.C. 103
acceptable for a patent under 35 U.S.C. 101
the provisions of 37 C.F.R. 1.114(e) do not apply to design patent applications

At a glance:
Differences between utility and design patents.

Utility
term is 20 years from U.S. filing date
maintenance fees are required
may have multiple claims
restriction between plural, distinct inventions is discretionary
may file under PCT
foreign priority can be obtained up to one year after first filing in any country subscribing to the Paris Convention
may file a provisional application

Design
term is 14 years from date of grant
there are no maintenance fees
may only have a single claim
distinct invention is mandatory
may not file under PCT
foreign priority may be obtained up to 6 months after the first filing in any country subscribing to the Paris Convention
may not file for a provisional application

design patents last only 14 years from issue instead of the 20 years maintenance fees not are due on design patents

under 35 U.S.C. 102(d), design patent applicants have a maximum of six months to file for foreign priority, rather than one year as allowed in utility patents

design patents are not allowed provisional priority, only utility patents are allowed a provisional priority
may not file a provisional application for a design

the numbering system on design patents and utility patents are different in that design patents begin with a "D" before the number

both design and utility patents may be obtained on the same article if the invention resides both in its utility and its ornamental appearance

1503 Elements of a design patent application
most of the elements of a design application are the same as in a utility application

Order of contents for design patent applications:
design application transmittal form
fee transmittal form
application data sheet
specification
preamble (if included), stating the name of the applicant, the title of the design and a brief description of the nature and intended use of the article in which the design is embodied
crossreference to related applications (unless this is included in the application data sheet)
statement regarding federally sponsored research or development
description of any drawing(s)
feature description
a single claim
drawings or photographs
an executed oath or declaration

the text of the specification should be preceded by a section heading in uppercase letters without underlining or bold type

Specification:
utility patents require a preamble, design patents do not (although one may be included)
the preamble states the inventor's name and the title of the invention

the specification may contain a brief description denoting the nature and environmental use of a claimed design

the drawing disclosure can be supplemented by a narrative description in the specification

the design claim varies from utility claims:
there is only one claim
it is usually written as "the ornamental design for the article which embodies the design or to which it is applied as shown"

statements which describe or suggest another embodiment of the claimed design having a shape and appearance that would be evident from the one shown are permitted in the specification of an issued design patent

Drawings:

§ 1.152 Design drawings.
The design must be represented by a drawing that complies with the requirements of § 1.84 and must contain a sufficient number of views to constitute a complete disclosure of the appearance of the design. Appropriate and adequate surface shading should be used to show the character or contour of the surfaces represented. Solid black surface shading is not permitted except when used to represent the color black as well as color contrast. Broken lines may be used to show visible environmental structure, but may not be used to show hidden planes and surfaces that cannot be seen through opaque materials. Alternate positions of a design component, illustrated by full and broken lines in the same view are not permitted in a design drawing. Photographs and ink drawings are not permitted to be combined as formal drawings in one application. Photographs submitted in lieu of ink drawings in design patent applications must not disclose environmental structure but must be limited to the design claimed for the article.

design drawings must not have any broken lines, they should all be solid since everything in the claimed design is important

different embodiments or modifications must be shown in the drawings

drawings may be color or color photographs if accompanied by a grantable petition explaining that color is an integral part of the claimed design

photographs and ink drawings are not allowed together in a single application

the Office is sua sponte waiving the requirement of 37 C.F.R. 1.84(a)(2)(iii) for black and white photocopies of color drawings or color photographs

1504 Examination
ornamentality, novelty, nonobviousness, enablement and definiteness are necessary prerequisites for the granting of a design patent

there are at least three kinds of designs, these include:
1. designs for an ornament, impression, print or picture applied to an article of manufacture (surface indicia)
2. designs for the shape or configuration of an article of manufacture
3. a combination of the first two categories

a picture standing alone is not patentable

designs may not contain offensive subject matter, these will be rejected as nonstatutory subject matter under 35 U.S.C. 171

design subject matter has the embodiment of the design in an article of manufacture

inventive novelty or nonobviousness of a design resides in the shape or configuration, and/or surface ornamentation embodied in or applied to an article of manufacture

I. functionality vs. ornamentality:
an ornamental feature or design has been defined as one which was "created for the purpose of ornamenting" and cannot be the result or "merely a byproduct" of functional or mechanical considerations
a design must be primarily ornamental

II. hidden in use:
knowledge that the article would be hidden during its end use based on the examiner's experience in a given art or information that may have been submitted in the application itself would be considered prima facie evidence of the lack of ornamentality of the claim

III. establishing a prima facie basis for rejections under 35 U.S.C. 171: examples of this type include:
common knowledge in the art
the appearance of the design itself
the specification of a related utility patent
information provided in the specification
the fact that an article would be hidden during its ultimate end use

IV. rejections made under 35 U.S.C. 171:
there are two categories of rejections based on prima facie lack of ornamentality:
a design is visible in its ultimate end use which is primarily functional based on the evidence of record
a design is not visible in its ultimate hidden end use which is itself evidence that the design is primarily functional

V. to overcome a rejection based on 35 U.S.C. 171:
submit a declaration under 37 C.F.R. 1.132 over applicant's signature
clearly explaining, specifically and in depth, which areas of the claimed
design were created for primarily ornamental reasons
show that the design was done with "thought of ornament"
submit a declaration from a representative of the company which
commissioned the design (would show intent behind creation of the
design)
a mere display of the article embodying the design at trade shows or in
catalogs is not proof of ornamentality

§ 1.132 Affidavits or declarations traversing rejections or objections.
When any claim of an application or a patent under reexamination is rejected or objected to, any evidence submitted to traverse the rejection or objection on a basis not otherwise provided for must be by way of an oath or declaration under this section.

Simulation:
a design must be original and not merely simulate something that is common
simulations may be rejected under 35 U.S.C. 171 as nonstatutory subject matter due to a lack of originality
the design must be novel, the average observer will take the new design for a different, and not a modified, already existing design
a design must be compared with something in existence, and not merely brought into existence by selecting and combining features from prior art references

Restriction:
the restriction principles may be applied to design restriction practice
the examiner will require a restriction in each design application which contains more than one invention
restriction may be required if the subject matter in a design patent application as disclosed in the drawing is either independent or distinct and is able to support separate design patents
design patents are independent if there is no apparent relationship between two or more separate articles disclosed in the drawings
for example:
a bicycle and a can opener

design inventions are distinct if the overall appearance of two or more embodiments of an article as disclosed in the drawings are different in appearance or scope for example:
two embodiments of a cell phone, each which has a novel and unobvious appearance over the other

more than one embodiment of a design invention may be illustrated in a single application
such embodiments may only be presented if they involve a single inventive concept and are not patentably distinct from one another
the specification should make clear that multiple embodiments are disclosed and should particularize the difference between the embodiments

Double patenting:
there are two types of double patenting rejections:
1. One is based on 35 U.S.C. 171 which states that an inventor is entitled to one patent for his or her invention:
is the same design being claimed twice?
2. The other is a "nonstatutorytype" double patenting rejection which was enacted to prevent a patent term from being lengthened:
are the designs directed to patentably indistinct variations of the same inventive concept?
this applies to claims directed to the same inventive concept with different appearances which are obvious variations of each other
double patenting may be based on a comparison of the claims in a patent and an application or between two applications
double patenting may exist between two or more design applications and even between design applications and a utility application
a nonstatutory double patenting rejection of the obviousnesstype applies to claims directed to the same inventive concept with different appearances which are obvious variations of each other

Expedited examination:

§l .155 Expedited examination of design applications.
(a) The applicant may request that the Office expedite the examination of a design application. To qualify for expedited examination:
(1) The application must include drawings in compliance with § 1.84;
(2) The applicant must have conducted a preexamination search; and
(3) The applicant must file a request for expedited examination including:
(i) The fee set forth in § 1.17(k); and
(ii) A statement that a preexamination search was conducted. The statement must also indicate the field of search and include an information disclosure statement in compliance with § 1.98.
(b) The Office will not examine an application that is not in condition for examination (e.g., missing basic filing fee) even if the applicant files a request for expedited examination under this section.

to qualify for an expedited examination:
the application must include drawings
the application must include a preexamination search
the applicant must file a request for expedited examination which includes: a fee
a statement that the preexamination search was completed also, a copy of the search and an IDS

this procedure further expedites the time for design application processing by decreasing the clerical processing time as well as the time spent routing the application between processing steps
the petition to "make special" procedure is available for designs
the petition fee to "make an application special" is less than the fee for an expedited examination
the Office will not examine an application that is not in condition for examination (i.e., missing the basic filing fee) even if the applicant files a request for expedited examination

Priority:

35 U.S.C. 172 Right of priority.
The right of priority provided for by subsections (a) through (d) of section 119 of this title and the time specified in section 102(d) shall be six months in the case of designs. The right of priority provided for by section 119(e) of this title shall not apply to designs.

the provisions of 35 U.S.C. 119(a)(d) apply to design patent applications
in order to obtain the benefit of an earlier foreign filing date, the U.S. application must be filed within 6 months of the earliest date on which any foreign application for the same design was filed

an application for a patent involving an invention which is filed by a set of inventors (or just one inventor) that is named in the previously filed application shall have the same effect as if the invention was filed on the date of the prior application
the application must be filed before the patenting or abandonment of or the termination of proceedings on the original application if it contains or is amended to contain a specific reference to the earlier filed application

in the absence of a statement in the design application as originally filed incorporating by reference the disclosure of an earlier filed application, the disclosure in a continuing application may not be amended to conform to that of the earlier filed application for which priority is claimed
a mere statement that an application is a continuation or division of an earlier filed application is not an incorporation of anything into the application containing such reference for purposes of satisfying the disclosure requirements of 35 U.S.C. 112, 1st paragraph

1512 Relationship between design patent, copyright and trademark
an ornamental design may be copyrighted as a work of art or receive a trademark and may also be covered by a design patent if it qualifies