What is the test for nonobviousness in design patent applications?
The test for nonobviousness in design patent applications is based on the Graham v. John Deere Co. factual inquiries, as stated in the MPEP:
“The basic factual inquiries guiding the evaluation of obviousness, as outlined by the Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), are applicable to the evaluation of design patentability:
- (A) Determining the scope and content of the prior art;
- (B) Ascertaining the differences between the claimed invention and the prior art;
- (C) Resolving the level of ordinary skill in the art; and
- (D) Evaluating any objective evidence of nonobviousness (i.e., so-called “secondary considerations”).”
These factual inquiries are used to determine whether the claimed design would have been obvious to a designer of ordinary skill in the art before the effective filing date of the claimed invention.
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