Can design applications claim benefit of provisional applications?
No, design applications cannot claim the benefit of provisional applications under 35 U.S.C. 119(e).
MPEP 211.01(a) explicitly states: Design applications may not claim the benefit of a provisional application under 35 U.S.C. 119(e).
However, it’s important to note that while a design application cannot directly claim benefit of a provisional application, it may be possible to indirectly claim benefit through an intermediate utility application. The MPEP clarifies: Thus, where a design patent application claims benefit under 35 U.S.C. 120 to an intermediate nonprovisional utility patent application that directly claims the benefit of a provisional application, the design application cannot claim the benefit of the filing date of the provisional application.
To learn more: