Any unique ornamental design of an article of manufacture (an item made by man or machine) may qualify for this type of protection. Generally, a design must satisfy the following:
1. It is "part" of the article. That is, the design is intertwined and inseparable from the item.
- For example, the label design on a bottle would not qualify, but the bottle itself would if uniquely shaped. Also, a design on a kite is separable (though it may be protected by copyright), but a kite with an original structure is an overall design and may likely qualify.
2. It is purely ornamental. The design cannot be part of the item's internal structure, nor may it be responsible for the article's new or improved use. A good test is to ask, "Would the article work the same way if the design was removed or changed?" If the answer is no -- that it would work differently (or not at all) -- it's more likely a candidate for a utility patent.
- To return to the kite example above, if the new layout enables one to fly it in a different way, this would be a structurally significant change pointing toward a utility patent.
The law also requires a patentable design to be "original" (cannot simulate a well-known object or person, or the form of one in a natural state) as well as non-offensive to any race, religion, sex, ethnic group or nationality.
