Can functional features be considered in a design patent anticipation rejection?

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.

Functional features generally cannot be relied upon to support patentability in design patent anticipation rejections. The MPEP states: When a claim is rejected under 35 U.S.C. 102 as being unpatentable over prior art, those features of the design which are functional and/or hidden during end use may not be relied upon to support patentability. Additionally, mere differences in functional considerations do not negate a finding of anticipation when determining design patentability. This means that examiners should focus on the ornamental aspects of the design rather than its functional features when assessing novelty.