How does the “ordinary designer” standard apply to design patent nonobviousness?
How does the “ordinary designer” standard apply to design patent nonobviousness?
The “ordinary designer” standard is crucial in determining nonobviousness for design patents. According to MPEP 1504.03, “The proper inquiry for determining obviousness is whether the claimed design would have been obvious to a designer of ordinary skill who designs articles of the type involved.”
This standard is similar to the “person having ordinary skill in the art” (PHOSITA) used for utility patents, but specifically tailored to design patents. The ordinary designer is considered to have knowledge of prior art designs in the field to which the design pertains. When assessing nonobviousness, examiners must consider whether this hypothetical ordinary designer would find the claimed design obvious in light of the prior art.
Key considerations include:
- The level of skill of the ordinary designer in the field
- The scope and content of the prior art
- The differences between the prior art and the claimed design
- Secondary considerations, such as commercial success or long-felt need
Examiners must provide a clear rationale for why the claimed design would have been obvious to the ordinary designer, based on these factors.
To learn more: