Outlier Patent Attorneys

Design Patent Applications


If you've held a Solo cup you might have noticed that it has a patent number on it.  You might have wondered, how did a Solo cup get a patent?  How is it novel and non-obvious over other cups that might have existed before the Solo cup was invented?  If you've asked these questions, then you've come to the right place because this post is all about design patents. Design patents protect the ornamental shape of an article, and design patents can be used to protect a whole host of items that you otherwise might not have thought of as patentable. 


Design patents offer legal protection for the unique visual aspects of functional products. Though not as common as utility patents, design patents shine in design-driven sectors such as fashion, food, and–as of recent–hardware. From a design perspective, a product might be patentable if it (1) displays unique visual ornamental attributes of the product or (2) represents an original, distinct design that differentiates it from others.

Design patents apply to both an article's configuration or surface ornamentation, or a combination of both. You can improve your odds of securing a design patent by focusing on the unique aesthetic attributes of the product and distinguishing that from your product’s functionality.

What are Design Patents?

A design patent is a specific type of patent that safeguards the ornamental design of a functional product.  To fully grasp this, let's discuss what a 'design' and 'ornamental design' mean in this context.

In the context of a design patent application, a ‘design’ within the context of a design patent application refers to the visual attributes inherent in or applied to an item of manufacture or a portion thereof.  These visual attributes create a distinct impression on the observer's mind through their appearance. 

'Ornamental', on the other hand, refers to the aesthetic, non-utilitarian aspects of an object of manufacture.  It can encompass the shape, pattern, color, and texture of the item.  Hence, a design patent provides protection to the visual aesthetics of a product – its shape, pattern, texture, or overall appearance.

Under 35 U.S. Code §171, a design patent protects "any new, original, and ornamental design for an article of manufacture."  It grants you legal right to stop others from making, using, selling, or importing an item with a design similar to your patented one for a 15-year span.

A design patent can cover (1) the configuration or shape of a manufactured article, (2) its surface ornamentation, or (3) a blend of both.  For a surface ornamentation, the design must have a definite pattern and the ability for it to be applied to an entire article or part of it.

Design patents do not cover the functional or utilitarian aspects of an invention–that's where utility patents come in.  To figure out whether a feature is ornamental or functional, ask whether the feature ornamentally appears different or performs a function differently.  This can be a nuanced question (to which the answer can be both).  Both design and utility patents can be obtained on the same item if there is invention in both its utility and design.  

While a product can exhibit both ornamental and functional characteristics, procuring a design patent for a primarily functional product does not shield you from potential infringement allegations based on functionality defense.  Simply put, the functional aspects of your patented product are not protected by your design patent. 

Design Patent Requirements

To qualify as a design patent, your design must be novel and nonobvious (as with utility patents), and it also must be original and ornamental.  This eligibility criteria under 35 U.S.C. 171 requires that the inventor is the creator of the design, and the design presents something distinct from existing ones.

  • Novelty and Nonobviousness: As with utility patents, design patents require that the design must be both novel and non-obvious.  In other words, the design must display something different than what already exists, presenting an innovative or unique aspect that is not an obvious extension of known designs.

  • Originality: The design must originate from the person applying for the patent.  This means a design patent cannot be obtained for a design copied from another source or person. 

  • Ornamentality: The design should also be ornamental, having distinctive aesthetic qualities apart from its functionality. 

Note: The courts' interpretations of 'ornamental' may differ, but most agree that a design that lacks a unique or distinctive shape or appearance, unrelated to the item’s functionality, doesn't qualify for design patents.

The USPTO also deems these two categories as improper subject matter for design patents: 

  1. Design that simulate a well-known or naturally occurring object or person (fails originality requirement) 

Anything considered offensive to any race, religion, sex, ethnic group, or nationality is not proper subject matter for a design patent application (35 U.S.C. 171 and 37 CFR § 1.3).

A key point here for design patentability here is that a design patent application should focus on the unique aesthetic attributes of the product.  Address the design challenges in your industry and present detailed descriptions and claims of the solutions you've developed.  Attempting to claim all conceivable design solutions or focusing solely on the user benefits derived from your design usually convolutes your design patent application.

“The relevant inquiry is whether there was a unique or distinctive shape or appearance to an object that is not dictated by the object’s function and purpose.” 
— Justia

The design patent application also requires a clear, complete drawing or black-and-white photograph of the claimed design, as per 35 U.S.C. 112.  Given the significance of the visual representation, it is advisable to engage a professional experienced in preparing design patent drawings.


Q: Can I apply for both a design and utility patent for the same product?

Yes, if a product has both unique functional aspects and unique aesthetic elements, it may be possible to secure both utility and design patents. (See here for more details).

Q: Can I still get a patent if my design is based on a preexisting design?

Yes, provided your design introduces an innovative and distinct aspect not present in the preexisting design.  It's crucial to ensure that the new design does not merely replicate elements from the prior design, but adds an element of novelty and uniqueness.

Q: Should I conduct a prior art search before filing a design patent application?

Like utility patents, design patent applications can be rejected if similar prior art (existing design patent(s)) already exists.  It is recommended that you do conduct a prior art search before filing a design patent application to make sure you’re not wasting resources filing an application for a design that already exists.  You can do one yourself, though it can be difficult to do a search given that the application's most descriptive portions are the drawings.  It can be worthwhile to get your patent attorney or patent search service to conduct a search.

Q: Do design patents protect against overseas manufacturing?

A US design patent provides protection only within the United States. However, you can apply for design patents in other countries or regions to protect your design internationally.