What is the standard for determining anticipation in design patent applications?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The standard for determining anticipation in design patent applications is the “ordinary observer” test. As stated in the MPEP: Under the ordinary observer test, ‘if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.’ This test requires consideration of the design as a whole, rather than an element-by-element comparison.