31 thoughts on “1 minute design patent survey

  1. 7

    Here’s an AIPLA comment: “AIPLA opposes fee increases for design applications, advocating instead for addressing cost shortfalls through measures like tackling improper applicant filings and adding design patent maintenance fees, in line with PPAC comments.”

  2. 6

    I was at Lowe’s today and saw the claimed design being sold by SCHLAGE and KWIKSET.

  3. 5

    giving a patent on a door handle is dumb; abolish these silly things

  4. 4

    I think the problem is that in most law firms I’ve been at the design patents are usually handled by a few people. I’ve filed a handful, but now I just give the work to the few people that file hundreds.

  5. 3

    Where is the claim? Does the claim define that it is a design for an electronic door lock? For example, “I claim: The ornamental design for an electronic door lock, as shown and described.”

    1. 3.1

      Not to mention it all looks like dashed lines (admittedly difficult to see on my phone).

      1. 3.1.1

        Are you suggesting that these 2 other drawings of what are clearly other door handles are not 103 prior art because they are in dashed rather than solid lines, or that they are somehow not 103-disclosed door handles because they are door handles onlu disclosed as part of an electronic door lock in prior art design patents labeled “Ornamental design for an electronic door lock?” [There are numerous decisions on 103 prior art as including unclaimed, disclaimed, rejected or incidentally disclosed parts of prior art patent specifications or drawings.]


          The much tougher question will be when the asserted prior art against a door handle is something that has the same shape but is not also a door handle.


          I think he’s suggesting that the claimed portion is normally in solid lines and the environment is normally dashed. The “claimed” design in this example appears to be all dashed. So, it is hard to determine what is actually being claimed.


            That is what I was saying.

    2. 3.2

      Yes. The ornamental design for an electronic door lock, as shown and described

    3. 3.3

      Yes. Don’t forget the CAFC has held that is limiting. If you took the exact same design and made a can opener instead of a door lock. you would avoid infringement.

      1. 3.3.1

        “ If you took the exact same design and made a can opener instead of a door lock. you would avoid infringement.”

        That actually makes sense! Likewise, such a design for a legit can opener would be worthy of a design patent. But such a design patent should not be infringed by a similar can opener with, say, a handle that is not recurved.

      2. 3.3.2

        Yes, but this is about 103 obviousness, not infringement, and just verbally limiting claims does not limit that patents 103 evaluation even for design patents – now.


          That’s true as far as it goes. But IIRC, the CAFC has also held that the art has to be “analogous.” If it’s from a completely different product, perhaps it does not factor into the obviousness analysis at all.

          “References within the statutory terms of 35 U.S.C. § 102 qualify as prior art for an obviousness determination only when analogous to the claimed invention. In re Clay, 966 F.2d 656, 658 (Fed.Cir.1992). Two separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.”

          In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).

          In Bigio, the court held that a toothbrush was analogous art to a hair brush. One could argue that a can opener is not analagous art to a door lock mechanism.


            BL – see prior discussion points on the ‘fragility’ of that second path (solving a problem) in that it is (arguably) only utility patents that solve problems (read that as having utility under patent law). Design patents expressly do NOT cover that type of utility coverage.

            This may well be why the USPTO stepped into its ham-fisted attempts in its recent Design Patent directive.


          Not quite — again, “design in the abstract” is a fly in the ointment (both in regards to case law (that merely kicked off the lid to Pandora’s box) and the current USPTO guidance which is F@t@11y flawed – as I have noted.

  6. 2

    The inquiry is essentially entirely subjective. “Obviousness” barely even works as a concept for design, because the very nature of ornamentation involves the influences of genre and medium that have gone before.

    A keypad and a door lever are generically obvious, apart and together. Unless the ornamentation is novel, it belongs to the public, and there is no world where a curved lever or a shaped bezel is novel.

    1. 2.1

      This. The only way a design patent system works in the modern world is if the design/ornamentation is highly detailed AND the infringement requires exact copying (need not be intentional, of course).

      Anything else just makes a farce out of the entire operation.

      1. 2.2.1

        Obvious design choices that merely combine existing utilitarian features where the features in the art have designs identical to the pictured designs.

        Here’s an ornamental design for a calculator, exactly identical to this prior art calculator except the back has a wavy pattern on the back exactly identical to a wavy pattern that has appeared on ten zillion other objects. What is being “promoted” by handing out a 13 year monopoly on that? It isn’t “progress” in the “ornamental arts”, that’s for sure.


          You are expressly using the “design in the abstract” notion.

          link to youtu.be

    2. 2.3

      To me, it seems quite simple to put together a design registration regime. If the accused embodiment is “closer” to the design on the Register than the corpus of known designs then it infringes, otherwise not. The scope of the registered design right should be proportional to the degree of design freedom that was available to an innovative designer. For example, the toothbrush art. Today, very little scope for design creativity. But go back in time to the invention of the first toothbrush. Every competing toothbrush, back then, would have been a copy, featuring the same design concept as exhibited by the registered design.

      With designs, unlike utility patents, it is relatively easy to say objectively which of two designs is “closer” to the one registered.

    3. 2.4

      >“Obviousness” barely even works as a concept for design,

      I agree. I’ll even note that most of the innovative designs I see are from the streamlined, form-follows-function school i.e., the kind of designs for which a “John Deere” style obvious analysis completely falls apart.

      1. 2.4.1

        OV – but HUGE problem – that school belongs to Professional Designers.

        As I have noted, such Professional Designers deal with Design in the Abstract, and almost never deal as a designer interested ONLY in a specific (applicant chosen) article of manufacture ‘silo.’

        As such none of those qualify as the ‘limited’ proper legal fictional person dictated by the developed law of 35 USC 103.


          Anon’s 2.4.1 notes that “Professional Designers deal with Design in the Abstract, and almost never deal as a designer interested ONLY in a specific (applicant chosen) article of manufacture ‘silo.’As such none of those qualify as the ‘limited’ proper legal fictional person dictated by the developed law of 35 USC 103.”

          That is another way of stating what I was trying to say on the earlier blog. Namely, that more normal 103 case law applies now, and if the design patent is for the kind of products that are designed by a professional product designer that designs a wide variety of different products, then the 103 POSITA is also not limited to that one product line. That logically means that the scope of analogous versus “non-analogous” prior art for design patents under 103 is now a much more open question and not nearly as limited as in some prior panel opinions. The subject en banc decision does say there is still some “non-analogous” art, but en banc decisions control, and it did not say or suggest that prior very narrow prior art scope panel opinions that it inherently conflicts with are still good law for design patent cases.


            A step closer, but still not (apparently) grasping the fundamental dichotomy that arises between Utility and Design.

            At least though, you do seem to recognize that “A” lid has been kicked ajar – just not that THAT lid is to Pandora’s box.

  7. 1

    First survey question: no problem; second survey question: ehhh….

    Aside from the psychological biases of ego, exactly how many registered attorneys or agents, who may or may not have filed design patent applications for paying clients, would you expect to acknowledge any degree of “incompeten[ce]” with the subject matter?

    You might have tried to establish a more objective measure of competence (years practices; number of design applications filed, etc.).

    1. 1.1

      Just enter “extremely competent”.

    2. 1.2

      I agree with suggestion that establishing a measure of competence would have been useful. I have never filed nor prosecuted a design patent, and just went with my gut feeling in answering.

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