What is the significance of the “primary reference” in design patent obviousness rejections?

The concept of a “primary reference” is crucial in design patent obviousness rejections. The MPEP explains:

“In order to support a holding of obviousness, a primary reference must be more than a design concept; it must have an appearance substantially the same as the claimed design.“

Key aspects of the primary reference in design patent analysis:

• It must have design characteristics that are basically the same as the claimed design.
• The primary reference sets the foundation for the obviousness rejection.
• Secondary references can be used to modify the primary reference to arrive at the claimed design.
• The examiner must provide a proper rationale for combining the primary reference with secondary references.

When evaluating or responding to an obviousness rejection, carefully consider whether the primary reference truly has an appearance substantially the same as the claimed design, as this is a critical factor in the analysis.

To learn more:

• primary reference
• design patent obviousness
• patent examination
• prior art