Design patent
Also called design patents, patent for design, ornamental design patent
Design patent is, in the United States, a patent for a new, original and ornamental design for an article of manufacture (35 U.S.C. 171). In general terms, a design patent protects the way an article looks, while a utility patent protects the way an article is used and works1,2.
Other systems protect designs under other names, for example registered designs in the EU9. This page covers the US, the EU and China.
What a design patent protects
The USPTO describes a design as the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Because a design is manifested in appearance, its subject matter may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to a combination of the two2.
| Patent type | What it protects | US statute |
|---|---|---|
| Design patent | The way an article looks2 | 35 U.S.C. 1711,2 |
| Utility patent | The way an article is used and works2 | 35 U.S.C. 1012 |
Both kinds of patent may be obtained on an article if the invention resides both in its utility and in its ornamental appearance. The USPTO says that utility and design patents afford legally separate protection2.
Design protection by jurisdiction
United States
- Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent, subject to the conditions and requirements of Title 35 (35 U.S.C. 171(a))1.
- Patents for designs are granted for the term of 15 years from the date of grant (35 U.S.C. 173)3. That term applies to patents issued from design applications filed on or after May 13, 2015. Patents issued from design applications filed before that date have a 14 year term from the date of grant4.
- Infringement is judged by the ordinary observer test. In Egyptian Goddess v. Swisa (Fed. Cir. 2008, en banc), the court held that the ordinary observer test should be the sole test for determining whether a design patent has been infringed, and that the point of novelty test should no longer be used5.
- Under that test, two designs are substantially the same if, in the eye of an ordinary observer giving such attention as a purchaser usually gives, the resemblance is such as to deceive the observer into buying one supposing it to be the other5. Where the claimed and accused designs are not plainly dissimilar, the comparison benefits from considering the prior art, and the burden of proof of infringement remains on the patentee5.
European Union
- Regulation (EU) 2024/2822 applied from 1 May 20256. The Community Design Regulation became the European Union Design Regulation, the registered Community design became the registered EU design, and existing Community designs automatically became EU designs7. As of 1 July 2026 the new EU design legal framework is fully applicable8.
- For EU design protection, a design must be new and have individual character. A design is the appearance of the whole or a part of a product resulting from the features of the product itself and/or of its decoration, including movement, transition or any other sort of animation of those features9.
- A registered EU design is initially valid for 5 years from the filing date and can be renewed for 5-year periods, up to a maximum of 25 years. An unregistered design gives protection for 3 years from the date of its first public disclosure within the EU9.
- The notion of product now explicitly includes non-physical (digital) items, such as graphical user interfaces8.
China
- "Design" means, with respect to an overall or partial product, any new design of the shape, the pattern, or their combination, or the combination of the colour with shape or pattern, which is rich in an aesthetic appeal and is fit for industrial application (Patent Law of the PRC, Article 2)10.
- A design for which a patent right may be granted must not be a prior design, and no one may have filed an earlier application for the identical design that is disclosed in patent documents announced after the filing date. It must significantly differ from prior designs or combinations of prior design features, and must not conflict with lawful rights acquired by any other person before the filing date (Article 23)10.
- Where no cause for rejection is found after the preliminary examination, the patent administration department under the State Council decides to grant the patent right for a design (Article 40)10. The preliminary examination also checks, among other things, whether the application obviously fails Article 23(1) or (2) of the Patent Law (Implementing Regulations, Rule 50(3))13.
- The term of patent right for designs is fifteen years, commencing from the filing date (Article 42)10. This applies to applications filed on or after 1 June 2021; design patents filed before that date keep the ten-year term of the previous law11,12.
Term of protection compared
The length of protection and the date it is counted from differ by jurisdiction3,9,10.
| Jurisdiction | Term of protection | Counted from |
|---|---|---|
| United States | 15 years for design applications filed on or after May 13, 2015; 14 years for those filed before3,4 | Date of grant3,4 |
| European Union (registered EU design) | 5 years, renewable in 5-year periods up to a maximum of 25 years9 | Filing date9 |
| China | 15 years for applications filed on or after 1 June 2021; 10 years for those filed before10,11,12 | Filing date10,11,12 |
Seen in the record
The decision below is the Federal Circuit's en banc ruling on the legal test for design patent infringement. It is an example of how the US applies the term, and says nothing about either party beyond the decision itself.
Egyptian Goddess, Inc. v. Swisa, Inc.
Decided September 22, 2008. The en banc court held that the point of novelty test should no longer be used in analyzing a claim of design patent infringement, and that the ordinary observer test should be the sole test for determining whether a design patent has been infringed5.
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How long does a design patent last?
It depends on the country. In the US, 15 years from the date of grant for design applications filed on or after May 13, 2015, and 14 years from grant for earlier applications3,4. In China, 15 years from the filing date for applications filed on or after 1 June 2021, and 10 years for earlier applications10,11,12. For a registered EU design, 5 years from the filing date, renewable in 5-year periods up to a maximum of 25 years9.
What is the difference between a design patent and a utility patent?
In general terms, a utility patent protects the way an article is used and works, while a design patent protects the way an article looks. Both may be obtained on the same article if the invention resides both in its utility and in its ornamental appearance2.
How is design patent infringement tested in the US?
By the ordinary observer test. The Federal Circuit held en banc in Egyptian Goddess v. Swisa that this is the sole test for determining whether a design patent has been infringed5. The patentee carries the burden of proving infringement, and the accused infringer carries the burden of producing any comparison prior art it relies on5.
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