Ornamentality Design Patent : Design patent allow any person who invents any new, original, and ornamental design for an article of manufacture to obtain a patent protection. As per the US patent law, the design patents replace the “usefulness” requirement of utility patents with an “ornamentality” requirement.
Ornamentality Design Patent
It is required that for a design to be considered ornamental, it must include some primarily nonfunctional feature or characteristic. The protection as bestowed by the design patent cannot be dictated solely by mechanical or any functional aspect of the invention/idea. It shall be understood that the designs that do not disclose any new surface ornamentation or novel configuration will most likely be rejected by the patent office during prosecution, or may later be revoked by the concerned judicial branches, for example a court during litigation.
One decision of US Federal Circuit identifies various factors that help determine whether a claimed design is dictated by functional considerations:
- Whether the protected design represents the best design;
- Whether alternative designs should adversely affect the utility of the specific article;
- Whether there are any concomitant utility patents;
- Whether advertising provide particular features of the design as having specific utility; and
- Whether there are any elements in the design or in its overall appearance clearly not dictated by function.
Although a design which is purely functional is not patentable, a design application that incorporates ornamental features along with the functional features can still be patentable, but only if the design features can exist independently of its functional features. Further, the functional aspects of the design are not considered for purposes of deterring the infringement of the design patent.
So, in general, the design of an article or the primarily ornamental purpose is the sole consideration for obtaining the design patent. The utility aspect of the various elements that completes the design are not relevant with respect to a design patent.
