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.
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.