Design patents in the United States

What a design patent protects

35 U.S.C. 171(a) grants a patent to whoever "invents any new, original and ornamental design for an article of manufacture". The rest of the Patent Act applies too (171(b)), so the design must also be novel and non-obvious under sections 102 and 103.

The claimed subject matter is the design for the article, not the article itself (MPEP 1502). That design can be:

• the configuration or shape of an article, such as the contour of a bottle or a chair;
• surface ornamentation applied to an article, such as a pattern molded into a phone case. Ornamentation must be shown on an article; it cannot be claimed floating on its own;
• a combination of the two;
• a portion of an article, with the unclaimed parts in broken lines. Claiming only the distinctive portion, such as the toe cap of a shoe, often gives broader protection than claiming the whole product;
• a computer icon or graphical user interface, if it is shown on a display screen or panel. A picture standing alone is not a design for an article (MPEP 1504.01(a)).

What does not qualify: a design dictated purely by function, where no other shape would do the job; a design that merely copies an existing object or person; and a design that is offensive (MPEP 1504.01(c) and (d)). If the value of the product is in how it works, you need a utility patent instead, or as well.

Design patent drawings

In a design application the drawings are the claim. 37 CFR 1.152 requires drawings that meet the general rules of 37 CFR 1.84 (covered in patent drawing requirements) and that contain "a sufficient number of views to constitute a complete disclosure of the appearance of the design". The specific design rules are:

• Views: usually front, rear, both sides, top, bottom and a perspective view. Leave a view out and the examiner may find the design incompletely disclosed. You cannot add a missing view later without adding new matter.
• Shading: appropriate surface shading should show the character and contour of the surfaces. Solid black shading is not allowed except to show the color black or color contrast.
• Broken lines: may show environmental structure or unclaimed portions, but not hidden planes that cannot be seen through opaque material.
• No alternate positions: full and broken lines may not show a component in two positions in the same view.
• Photographs: allowed where they are the only practicable medium, for example for ornamental effects (37 CFR 1.84(b)). Photographs and ink drawings cannot be combined as formal drawings in one application, and photographs must not show environmental structure.
• Color: color drawings are permitted in design applications without the petition that utility applications need (37 CFR 1.84(a)(2)). Color shown becomes part of the claimed design.

Decide what to claim before the drawings are made. Solid lines claim; broken lines disclaim. A design drawn entirely in solid lines covers only products that copy every feature, and a copier who changes one claimed feature may escape.

The application and its single claim

37 CFR 1.154 sets the order: a design application transmittal form, a fee transmittal form, an application data sheet, the specification, the drawings or photographs, and the inventor's oath or declaration. The specification is short: a preamble naming the applicant, the title and the intended use of the article, any cross-reference to related applications, a description of each figure, an optional feature description, and the claim.

Under 37 CFR 1.153(a), the title must name the article, and the claim takes a fixed form: "The ornamental design for a beverage bottle, as shown" (or "as shown and described" if the specification adds a description). "More than one claim is neither required nor permitted." You can still show several embodiments under that one claim if they share a single inventive concept; patentably distinct designs draw a restriction requirement, and the others can go into divisional applications (MPEP 1504.05).

The filing date is the date the specification, including the claim, and any required drawings are received (35 U.S.C. 171(c)). That differs from a utility application, which gets a date without claims. A design application cannot claim the benefit of a provisional (35 U.S.C. 172; 37 CFR 1.78(a)), and foreign priority must be claimed within 6 months, not 12. A design application can be a continuation or divisional of an earlier design or utility application under section 120 if the earlier drawings support the design, and a design continuation or divisional can be filed as a continued prosecution application under 37 CFR 1.53(d), a route closed to utility applications. See continuation applications.

Design patent cost and term

Fees from the USPTO fee schedule effective January 19, 2025. The non-DOCX surcharge and the paper filing fee do not apply to design applications. Full fee tables are in USPTO patent fees.

The term is 15 years from the date of grant (35 U.S.C. 173) for applications filed on or after May 13, 2015, when the Hague Agreement took effect for the United States; earlier design patents ran 14 years. No maintenance fees are due (37 CFR 1.362(b)). A design patent granted on September 1, 2026 is in force until September 1, 2041 with nothing more to pay.

Design applications are not published before grant (35 U.S.C. 122(b)(2)(A)(iv)), so a pending design stays confidential until it issues. There is no longer a way to speed it up: the USPTO suspended expedited examination of design applications on April 17, 2025 and removed 37 CFR 1.155 entirely with effect from August 14, 2025 (Federal Register, August 14, 2025). Track One prioritized examination does not cover designs either (37 CFR 1.102(e)). Plan for ordinary pendency.

Design patent vs utility patent

The two protect different things and are enforced differently. The comparison below uses current USPTO fees at the large entity rate.

How to choose: ask what a competitor would copy. If they could copy the look without the mechanism, as with furniture, packaging, apparel, consumer electronics housings or app icons, a design patent is the efficient tool. If they would copy the mechanism and could change the look, only a utility patent helps. For a product whose look and function are both new, file both; they can claim the same drawings, and the utility application can serve as the parent of a later design continuation if the drawings show the design fully. Remember the 6-month foreign priority window for designs if you plan to file abroad.

The total-profit remedy in 35 U.S.C. 289 is why design patents matter in litigation: an infringer is liable "to the extent of his total profit" on the article of manufacture to which the design was applied, with a minimum of $250. Utility patent damages, by contrast, are measured by lost profits or a reasonable royalty.

Obviousness after LKQ v. GM (2024)

For decades, design obviousness was tested by the Rosen-Durling framework. A challenger first needed a primary reference "basically the same" as the claimed design, and could only modify it with secondary references "so related" to it that one would suggest the other. Few rejections survived that test.

On May 21, 2024, the Federal Circuit sitting en banc overruled both requirements in LKQ Corp. v. GM Global Technology Operations LLC, No. 2021-2348, holding them inconsistent with section 103 and with KSR and Graham v. John Deere. Design obviousness is now decided on the Graham factors:

• Scope and content of the prior art. References must be analogous art. Designs for the same field of endeavor as the claimed article are analogous; the court left open what else may be. A primary reference is still needed, but it only has to be "something in existence", likely the closest prior design, not "basically the same".
• Differences. Compare the overall visual appearance of the claimed design with the prior art, from the view of an ordinary designer in the field.
• Level of ordinary skill of a designer of articles of that type.
• Secondary considerations, such as commercial success, industry praise and copying, when evidence is presented.

The court also required a record-supported reason, free of hindsight, why an ordinary designer would have modified the primary reference with features from the secondary references to create the same overall appearance. It reinstated the panel's finding of no anticipation and sent the obviousness question back to the Patent Trial and Appeal Board.

The USPTO told examiners to apply the new test the next day, in a memorandum dated May 22, 2024. Note that the current MPEP (Revision 01.2024) only reflects law up to January 31, 2024, so MPEP 1504.03 still describes the overruled test. Rely on the memo and the opinion. In practice, expect more obviousness rejections built from two or more references, and keep evidence of commercial success, praise and copying where you have it.

International design applications (Hague)

The Hague Agreement lets you file one international design application with WIPO's International Bureau and designate many member states and regional offices at once. The United States has been a member since May 13, 2015. Two routes matter to US applicants:

• Filing through the USPTO. US nationals and people with a domicile, habitual residence or real business establishment in the US can file through the USPTO as an office of indirect filing (35 U.S.C. 382; 37 CFR 1.1011). The USPTO charges a transmittal fee of $130 ($52 small, $26 micro) under 37 CFR 1.1031; the international fees go to WIPO in Swiss francs, or through the USPTO in dollars if paid no later than the transmittal fee. The USPTO runs a security review before forwarding the application to WIPO.
• Designating the United States. An international design application designating the US has the effect of a US design application from its filing date (35 U.S.C. 384 and 385). The USPTO examines it under US law and must send any refusal within 12 months of publication of the international registration (37 CFR 1.1062). The US-specific drawing and claim rules in 1.152 to 1.154 do not apply to it (1.1061(b)), but it still needs a single claim and enough views to satisfy section 112. The issue fee can be paid to the USPTO or through the International Bureau (1.18(b)).

The Hague route is efficient when you want registrations in several Hague members, such as the European Union, the United Kingdom, Japan or Korea. For details and WIPO fees, see the WIPO Hague System pages. The 6-month priority period from your US design filing applies.

Design patent search tips

Design prior art is visual, and keyword search finds only part of it. Prior art also includes products on sale, catalogs, websites and utility patents whose drawings happen to show a similar shape.

1. Start from the article. Search by what the product is ("beverage bottle", "earbud case"), not by how it looks. Design titles name the article.
2. Use the design classes. US design patents are classified in classes D1 to D34 plus D99, and those issued after May 6, 1997 also carry a Locarno class (USPTO design classification). Find the subclass for your article and browse its images in USPTO Patent Public Search.
3. Look abroad. The WIPO Global Design Database covers Hague registrations and many national registers, searchable by Locarno class.
4. Check utility drawings and the market. Search utility patents and publications for the same article, and check retailer listings and trade catalogs. After LKQ, a near design in a related field can be combined with others, so look wider than you used to.
5. Compare overall appearance. For each hit, ask whether an ordinary observer would see the same overall impression. That is the question for both validity and infringement.

The USPTO patent search on PatentAssist is text-based. It helps with the utility side of a product and with finding related US patents by description, but for appearance comparisons use the image tools above.

More USPTO guides

• How to file a provisional patent application (US)

  What a US provisional must contain, the USPTO fees, the 12-month deadline under 35 U.S.C. 119(e), and when to skip it.

• USPTO patent fees (2026)

  Every USPTO patent fee for large, small and micro entities, from filing to maintenance, with a fee calculator.

• Patent drawing requirements: USPTO, EPO and India

  37 CFR 1.84, the EPO rules that replaced Rule 46 EPC, and Indian rule 15, compared side by side.

• How to write patent claims: USPTO, EPO and India

  Claim structure and worked examples, then the claim rules and fees at the USPTO, the EPO and the Indian Patent Office, side by side.

• How to respond to a USPTO office action

  Reply deadlines and extension fees, 101, 102, 103 and 112 rejections, interviews, and options after a final rejection.

• Types of patent searches, and which one you need

  Patentability, freedom-to-operate, invalidity and landscape searches compared by purpose, timing, scope and deliverable.

• Patentability search: how to check novelty before you file

  What counts as prior art under 35 U.S.C. 102 and Art. 54 EPC, the grace period gap, search steps and how to read results.

• Freedom-to-operate search in the US and Europe

  In-force claims only, legal status checks at the USPTO, EPO and UPC, FTO opinions after Halo, and design-arounds.

• Invalidity search: prior art to challenge a patent

  IPR, PGR, EPO opposition and UPC revocation deadlines, prior art dates, standards documents and claim charts.

• Patent landscape analysis, step by step

  Building a CPC and keyword dataset, cleaning families and names, the metrics that matter and the 18-month publication lag.

• How to use USPTO Patent Public Search

  Basic and Advanced Search, the three databases, field codes, ADJ, NEAR, WITH and SAME, truncation and a worked search.

• Google Patents search guide

  Search operators and fields, Boolean and proximity syntax, non-patent literature, and where Google Patents falls short of the official databases.

• The Cooperative Patent Classification (CPC), explained

  How CPC symbols are built, CPC against IPC, the Y section, how to find the right class and how to search it in each database.

• Patent search Boolean operators and search strings

  Boolean, proximity and truncation syntax compared across Patent Public Search, Espacenet, Google Patents and The Lens, with semantic search for contrast.

• How to respond to a 35 U.S.C. 101 rejection

  The Alice/Mayo steps in MPEP 2106, Ex parte Desjardins and the 2024-2026 USPTO guidance, Berkheimer evidence and Rule 132 eligibility declarations.

• How to respond to a 35 U.S.C. 102 rejection

  Anticipation under MPEP 2131, AIA 102(a)(1) and (a)(2), the 102(b) exceptions, inherency and Rule 130 declarations.

• How to respond to a 35 U.S.C. 103 rejection

  Graham and the KSR rationales in MPEP 2143, teaching away, motivation to combine, secondary considerations with nexus, and Rule 132 evidence.

• How to respond to a 35 U.S.C. 112 rejection

  Written description and enablement after Amgen, 112(b) indefiniteness, 112(f) means-plus-function after Williamson, and 112(d) dependent claims.

• The PCT application: timeline, fees and national phase

  The international phase month by month, receiving Office and ISA fees in CHF, USD and EUR, national phase deadlines by office, and a deadline calculator.

• Entering the US national stage under 35 U.S.C. 371

  The 30-month deadline and revival, the 371 requirements, national stage fees by entity size, and 371 versus a bypass continuation.

• The US foreign filing license (35 U.S.C. 184)

  When a US-made invention needs a license to be filed abroad, the six-month rule, expedited and retroactive licenses, and the Indian and European equivalents.

• Filing a US patent from Europe or India

  The 2026 US practitioner rule for foreign applicants, Paris priority and certified copies, small entity status, PCT or direct, fees and translations.

• What is a utility patent?

  What a US utility patent covers under 35 U.S.C. 101, the parts of the application in 37 CFR 1.77 order, the 20-year term and USPTO costs.

• How to file a nonprovisional patent application

  Required parts and fees, claiming a provisional within 12 months, DOCX filing in Patent Center, and what happens after you file.

• Provisional vs nonprovisional patent application

  The two US filings side by side, the cost of each route, the effect on term and publication, and a guide to which to file.

• Continuation, CIP and divisional applications

  Copendency, patent term, double patenting and terminal disclaimers, the 2025 continuing application fee, and continuation strategy.

• How much does a patent cost?

  USPTO fees by entity size from filing to the last maintenance fee, what drives professional fees, EPO fees, and an estimator.

• How to patent an idea in the US

  Nine steps from patentability and search to provisional filing, Patent Center, examination and maintenance, with the USPTO's free help programs.

• Small entity vs micro entity status

  Who qualifies under 37 CFR 1.27 and 1.29, the 2026 income limit, SB/15A and SB/15B, license traps, fixing errors, and an eligibility checker.

• How long does a patent last?

  US utility and design terms, patent term adjustment and extension, terminal disclaimers, maintenance fee deadlines, Europe and India, with an expiry estimator.

• Can AI write a patent application?

  What AI drafting does well and badly, the USPTO and EPO positions on AI tools, AI inventorship after 2025, and confidentiality.

• Restriction requirements and election of species

  How to answer a USPTO restriction or election of species requirement, from traverse and rejoinder to divisionals and unity in 371 cases.

• Options after a final rejection

  Amendment after final, advisory actions, the end of AFCP 2.0, RCE, pre-appeal and appeal, with fees, timing and USPTO outcome data.

• Request for continued examination (RCE)

  What 37 CFR 1.114 requires, first and later RCE fees, patent term effects, and when an RCE beats an appeal.

• Information disclosure statements (IDS)

  The duty of disclosure, IDS timing windows and fees, the 2025 size fee, EPO search reports, Therasense and QPIDS.

• PTAB ex parte appeals

  Notice of appeal to decision step by step, with fees, deadlines and the PTAB's FY 2026 pendency and outcome statistics.

• Track One prioritized examination

  Track One requirements, fees by entity size, the 20,000 annual cap and USPTO timing data, plus PPH and age or health petitions.

• 35 U.S.C., annotated: US patent law section by section

  The current text of 34 key sections of Title 35 with plain-English summaries, key cases, 37 CFR rules and MPEP references.

All guides, by patent office