Design and plant applications

Designs protect the ornamental appearance of an article; plants protect asexually reproduced new varieties. Both use a single claim, and both differ from utility practice on term, publication, priority and fees.

Filing, fees, benefit and priority2 min read4 sections

Must-know for the exam

One claim per design application, to the ornamental design for the article as shown (37 CFR 1.153)
Design term: 15 years from grant for applications filed on or after May 13, 2015 (35 U.S.C. 173)
Design filing date needs a claim and drawings (37 CFR 1.53(b))
Designs are not published before grant (35 U.S.C. 122(b)(2)(A)(iv))
Design priority is six months; no provisional benefit (35 U.S.C. 172)
Solid lines claim; broken lines show unclaimed environment (MPEP 1503.02)
A purely functional design is rejected under 35 U.S.C. 171
Icons must be shown on an article such as a display screen (MPEP 1504.01(a))
Patentably distinct design embodiments require restriction (MPEP 1504.05)
Plant patents: new, distinct, asexually reproduced; not tuber-propagated or found uncultivated (35 U.S.C. 161)
Plant applications: one formal claim; description as complete as reasonably possible (35 U.S.C. 162; 37 CFR 1.164)
No maintenance fees for designs or plants (37 CFR 1.362(b))
CPAs remain available for design applications only (MPEP 201.06(d))

On this page · 4 sections

Traps that cost marks

Treating a design application like a utility application with many claims.
Using the old 14-year term or the utility measure.
Thinking everything in the drawing is claimed.
Assuming all applications publish at 18 months.
Using utility-patent rejections for a design problem.
Letting a design claim a provisional.
Drawing the icon without the screen.
Forgetting the asexual reproduction requirement or the two exclusions.

Utility, design and plant compared

	Utility	Design	Plant
Claims	Any number	One	One
Term	20 years from filing	15 years from grant	20 years from filing
Maintenance fees	Yes	No	No
18-month publication	Yes	No	Yes
Provisional benefit	Yes	No	Yes

35 U.S.C. 41, 122, 154, 161-173

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