A “claimed invention” for a design patent application must contain a sufficient number of views to constitute a complete disclosure of the appearance of the design. This would also include surface shading sufficient to show the character or contour of the surfaces represented. Solid black surface shading is not permitted except when used to represent the color black as well as color contrast. Broken lines, however, may be used to show visible environmental structure, but may not be used to show hidden planes and surfaces that cannot be seen through opaque materials. Alternate positions of a design component, illustrated by full and broken lines in the same view are not permitted in a design drawing. Photographs and ink drawings are not permitted to be combined as formal drawings in one application. Photographs submitted in lieu of ink drawings in design patent applications must not disclose environmental structure but must be limited to the design claimed for the article.
The principal difference between a utility patent application and a design patent application is that a “utility patent application” is filed to protect the way an article is used and works, i.e., the function of the invention. A design patent application, however, is filed to protect the way an article looks. Both design and utility patent applications may be filed for a particular invention if an article embodying that invention has both a utility and an ornamental appearance that is not dictated by the utility or function.
A design for an article of manufacture that is dictated primarily by the function of the article lacks ornamentality and is not proper statutory subject matter under 35 U.S.C. 171. Specifically, if at the time the design was created, there was no unique or distinctive shape or appearance to the article not dictated by the function that it performs, the design lacks ornamentality and is not proper subject matter. In addition, 35 U.S.C. 171 requires that a design to be patentable must be “original.” Clearly a design that simulates a well-known or naturally occurring object or person is not original as required by the statute. Furthermore, subject matter that could be considered offensive to any race, religion, sex, ethnic group, or nationality is not proper subject matter for a design patent application (35 U.S.C. 171 and 37 CFR § 1.3).
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