How does the MPEP define “substantially the same” in the context of design patent anticipation?

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 MPEP provides guidance on what constitutes “substantially the same” in the context of design patent anticipation. According to MPEP 1504.02: The mandated overall comparison is a comparison taking into account significant differences between the two designs, not minor or trivial differences that necessarily exist between any two designs that are not exact copies of one another. Furthermore, Just as minor differences between a patented design and an accused article’s design cannot, and shall not, prevent a finding of infringement, so too minor differences cannot prevent a finding of anticipation. This indicates that examiners should focus on the overall visual impression rather than minor details when assessing anticipation.