Checklist to Determine Whether a Design Feature is Functional or Ornamental

In order to qualify for design patent protection, a claimed feature (or combination of features) must be primarily ornamental, not functional. In analyzing each feature, ask the following questions:

  1. Is the appearance of the design dictated by the use or purpose of the article?
  2. Does the design aspect affect the cost or quality of the article?
  3. Are there other functionally equivalent designs?
  4. Is this the best design? Would the alternate designs adversely affect the utility of the article?
  5. Does advertising tout particular features as being useful or utilitarian? (or a concomitant utility patent application)
  6. Are there elements that are not dictated by function?

If you conclude the design feature is ornamental, then you can proceed to protect it by design patent. Remember that a design patent protects the look – surface ornamentation, contour and configuration – of an article of manufacture. It does not protect the function or idea behind the product, something protected by a utility patent.

These are not mutually exclusive forms of protection and can strategically be combined to provide broad patent coverage. An experienced patent practitioner can help you develop a custom strategy to protect your valuable proprietary property and prevent copycats from usurping your market share.

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