What types of subject matter are not eligible for design patent protection?

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.

Certain types of subject matter are not eligible for design patent protection. According to MPEP 1504.01, the following are generally not considered statutory subject matter for design patents:

• A picture standing alone without a surface to which it is applied.
• A mere surface ornamentation without an article of manufacture.
• A method or process of creating a design.
• Naturally occurring objects that are not modified by human design.
• Purely functional designs without ornamental characteristics.

The MPEP states:

“A picture standing alone is not patentable under 35 U.S.C. 171. The factor which distinguishes statutory design subject matter from mere pictures or ornamentation per se (i.e., abstract designs) is the embodiment of the design in an article of manufacture.”

It’s important to remember that for a design to be patentable, it must be applied to or embodied in an article of manufacture and have primarily ornamental characteristics.