What factors determine if designs are patentably distinct in a design patent application?

Determining if designs are patentably distinct in a design patent application involves considering several factors:

1. Overall Appearance: The designs must be compared as a whole, not by individual elements.
2. Design Characteristics: The MPEP states that designs are not distinct if “(A) the multiple designs have overall appearances with basically the same design characteristics; and (B) the differences between the multiple designs are insufficient to patentably distinguish one design from the other.”
3. Obviousness: Differences may be considered insufficient to patentably distinguish when they are de minimis or obvious to a designer of ordinary skill in the art.
4. Prior Art: A search of prior art may be necessary to determine if differences between designs are obvious.

It’s important to note that even if differences prove to be obvious in view of prior art, if the overall appearances are not basically the same, the designs remain patentably distinct.

To learn more:

• design patents
• patentably distinct
• design characteristics
• obviousness