Can a picture or abstract design alone be patented as a design patent?
No, a picture or abstract design alone cannot be patented as a design patent. According to MPEP 1504.01:
“A picture standing alone is not patentable under 35 U.S.C. 171. The factor which distinguishes statutory design subject matter from mere picture or ornamentation, per se (i.e., abstract design), is the embodiment of the design in an article of manufacture.”
The design must be applied to or embodied in an article of manufacture to be eligible for design patent protection. A claim to a picture, print, or impression that is not applied to or embodied in an article of manufacture should be rejected under 35 U.S.C. 171 as directed to nonstatutory subject matter.
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