How does experimental activity apply to design 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.

Experimental activity in the context of design patents is more limited compared to utility patents. According to MPEP 2133.03(e)(6):

“The public use of an ornamental design which is directed toward generating consumer interest in the aesthetics of the design is not an experimental use.”

However, there is an exception:

“[E]xperimentation directed to functional features of a product also containing an ornamental design may negate what otherwise would be considered a public use.”

This means that while testing the aesthetic aspects of a design is generally not considered experimental use, testing functional features associated with the design might qualify as experimental activity.