What qualifies for a design patent?
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 and as long as that shape does not affect the bottle's function.
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) -- you more likely have a candidate for a utility patent.
- To return to the bottle example above, if the new shape enables spill-proof pouring, 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 or naturally-occuring object or person) as well as non-offensive to any race, religion, sex, ethnic group or nationality.