How does double patenting apply to design and utility patents?

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.

Double patenting can occur between utility and design patents in certain situations:

• Double patenting rejections can be made between utility-plant, utility-design, or design-utility patents/applications
• The same principles generally apply as in utility-utility situations
• Double patenting may exist even if the claims are not directed to the same invention or obvious variations

As stated in MPEP 804: “Double patenting issues may be raised where an applicant has filed both a utility patent application (35 U.S.C. 111) and either an application for a plant patent (35 U.S.C. 161) or an application for a design patent (35 U.S.C. 171). In general, the same double patenting principles and criteria that are applied in utility-utility situations are applied to utility-plant or utility-design situations.”