A design patent protects how a manufactured article looks, not how it works. It covers the ornamental appearance of a product: its shape, its surface ornamentation, or the two in combination. The Coca-Cola bottle contour, the Statue of Liberty, the original iPhone’s rounded rectangle face, and the arrangement of icons on a phone screen have all been design patent subject matter.
The statutory basis is 35 U.S.C. § 171, which allows a patent to “whoever invents any new, original and ornamental design for an article of manufacture.” Every word in that phrase is doing work. The design must be new and non-obvious, the same way a utility invention must be. It must be ornamental rather than functional. And it must be tied to an article: you cannot patent a shape floating free of any product.
A design patent has exactly one claim, and it is a single sentence pointing at the drawings: “The ornamental design for a chair, as shown and described.” The drawings are the claim. Everything the patent protects is on those sheets, and nothing else is.
This produces the most consequential drafting convention in the field. Solid lines show what is claimed. Broken lines show environment that is disclaimed. A drawing of a phone where only the front bezel is in solid lines claims that bezel on a phone, no matter what the rest of the phone looks like. Applicants use broken lines deliberately to broaden scope, because the fewer features you claim, the more accused products fall inside the boundary. Conversely, a drawing that renders every screw and seam in solid line is a narrow patent that a competitor can design around by moving one screw.
The ornamentality requirement is the real gatekeeper. A design is invalid if it is dictated solely by function, and courts ask whether alternative designs would perform the same job equally well. If a dozen shapes work, the one you chose is ornamental and patentable. If the shape is the only way to make the part do its job, it belongs in a utility patent or nowhere.
The line is finer than it sounds because most product designs are functional in some loose sense. A hex key is hexagonal for a reason. A wrench handle is contoured to fit a hand. Courts do not disqualify a design merely because it works well; they ask whether the appearance was the driver. In practice, the existence of competing products that look different and function identically is the strongest evidence that a design is ornamental.
The design also has to be visible during normal use or in a way that matters commercially. A component buried inside a sealed housing that no purchaser ever sees is a weak candidate, though the Federal Circuit has accepted visibility at points of sale and in advertising rather than requiring visibility only during operation.
A design patent runs 15 years from the date of grant for applications filed on or after May 13, 2015, when the Patent Law Treaties Implementation Act took effect. Applications filed before that date get 14 years. Note the difference from utility patents: the clock starts at issuance, not at filing, so time spent in examination is not deducted from the term.
There are no maintenance fees. Once the patent issues, nothing further is due, and it cannot lapse for nonpayment. That plus a much smaller filing and examination fee makes design patents dramatically cheaper to own over their lifetime than utility patents, which bleed escalating fees at 3.5, 7.5, and 11.5 years. Design applications also tend to issue faster, since there is no prose specification to argue over and rejections cluster around drawing formalities and prior art.
The governing standard is the ordinary observer test, which traces to the Supreme Court’s decision in Gorham Co. v. White (1871): infringement exists if, in the eye of an ordinary observer giving the attention a purchaser usually gives, two designs are substantially the same, and the resemblance deceives that observer into buying one supposing it to be the other.
The Federal Circuit modernized the test in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc). That decision did two things. It scrapped a separate “point of novelty” requirement that had let defendants pick apart a design feature by feature. And it made the prior art the frame of reference: the ordinary observer is deemed familiar with existing designs in the field, so when a crowded field is full of similar products, small differences carry more weight and the patent is correspondingly narrow. In a sparse field, the same small differences would not save an accused design.
The comparison is holistic. You look at the overall visual impression, not at whether the accused product contains every claimed element the way a utility claim demands. Functional features are filtered out of the comparison, but the design is assessed as a whole rather than dissected.
Obviousness for designs was itself rewritten recently. In LKQ Corp. v. GM Global Technology Operations, 102 F.4th 1280 (Fed. Cir. 2024) (en banc), the court discarded the rigid Rosen-Durling framework, which had required a single primary reference “basically the same” as the claimed design, and replaced it with the flexible Graham v. John Deere analysis used for utility patents. The practical effect is that design patents are somewhat easier to invalidate as obvious than they were before 2024.
35 U.S.C. § 289 gives design patent owners something utility patent law has no counterpart for: the infringer’s total profit on the article of manufacture to which the design was applied. Not a reasonable royalty, not the plaintiff’s lost profits, but the defendant’s entire profit on the item, with no apportionment for the fact that most of the product’s value came from things other than its looks.
That provision drove Samsung Electronics Co. v. Apple Inc., 580 U.S. 53 (2016). Apple won on design patents covering the iPhone’s rounded rectangular front, its bezel, and its icon grid, and a jury awarded Samsung’s profits on the phones themselves. The Supreme Court reversed unanimously on a narrow question: the “article of manufacture” in § 289 can be a component of a multicomponent product rather than the finished product sold to consumers. If the design applies only to a phone’s front face, the relevant article may be that face, not the phone. The Court declined to supply a test for identifying the article, leaving the lower courts to work it out, and a 2018 retrial produced a $533.3 million verdict on the design patents before the parties settled.
The takeaway is that § 289 remains an outsized remedy even after Samsung. It is why a design patent on a consumer product’s appearance can be a more feared weapon than a utility patent on the technology inside it.
What is a design patent? A design patent protects the ornamental appearance of an article of manufacture: its shape, surface decoration, or both. It is granted under 35 U.S.C. § 171 and covers only what the drawings show. It does not protect how the article works, what it is made of, or any feature dictated purely by function.
How long does a design patent last? Fifteen years from the date of grant for applications filed on or after May 13, 2015. Applications filed before that date get 14 years from grant. Unlike utility patents, design patents carry no maintenance fees, so nothing is due after issuance to keep the patent alive for its full term.
How do you infringe a design patent? Under the ordinary observer test from Egyptian Goddess v. Swisa (Fed. Cir. 2008, en banc), infringement exists if an ordinary observer familiar with the prior art would find the accused design substantially the same as the patented one, enough to be deceived into buying one thinking it was the other. It is a whole-design comparison, not an element-by-element claim analysis.
What can you recover for design patent infringement? 35 U.S.C. § 289 lets the owner recover the infringer’s total profit on the article of manufacture bearing the design, a remedy with no counterpart in utility patent law. In Samsung Electronics v. Apple (2016), the Supreme Court held the relevant article can be a component rather than the whole end product, so total profits are not automatically calculated on the finished device.
Going further: Design vs. Utility Patent, which one you need .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Federal Circuit held a design patent for a pattern for a chair was not infringed by baskets, because claim language limits a design to its named article.
The Federal Circuit held a lip-implant design claim cannot be anticipated by a look-alike art tool, because design claims are limited to their article.
Sitting en banc, the Federal Circuit overruled the four-decade-old Rosen-Durling framework and folded design-patent obviousness into the flexible Graham analysis used for utility patents. Design patents just became easier to challenge.
The Federal Circuit held that comparison prior art in a design-patent case must be applied to the same article of manufacture claimed in the patent, reshaping the ordinary-observer test.
A unanimous Supreme Court held that the 'article of manufacture' for design-patent damages under § 289 can be a single component, not necessarily the entire end product sold to consumers.
Sitting en banc, the Federal Circuit scrapped the separate point-of-novelty test for design-patent infringement and made the prior-art-informed ordinary observer the sole standard.
In the first design-patent case it ever heard, the Supreme Court rejected an expert-eye comparison and adopted the ordinary-observer test that still governs infringement more than 150 years later.
