Can a design patent protect a design in the abstract?
No, a design patent cannot protect a design in the abstract. According to MPEP 1502, design patents are specifically limited to designs applied to articles of manufacture. This principle is reinforced by recent case law cited in the MPEP:
“A design claim is limited to the article of manufacture identified in the claim; it does not broadly cover a design in the abstract.” (In re SurgiSil, L.L.P., 14 F.4th 1380, 1382, 2021 USPQ2d 1008 (Fed. Cir. 2021))
The MPEP further emphasizes this point by stating:
“Design is inseparable from the article to which it is applied and cannot exist alone merely as a scheme of surface ornamentation. It must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method.“
This means that to be eligible for design patent protection, a design must be:
- Applied to or embodied in a specific article of manufacture
- Definite and preconceived
- Capable of reproduction
- Not merely an abstract concept or scheme
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