Digital and new technology designs

As set forth in title 35, section 171, of the United States Code, design patents provide protection for new, original, and ornamental designs for an article of manufacture. The United States Patent and Trademark Office (USPTO) has traditionally viewed this to mean that design patents provide protection for designs embodied in or applied to an article of manufacture (or portion thereof) and not the article itself. An ornamental design may be embodied in an entire article or only a portion of an article, or may be ornamentation applied to an article.

With the advancement of technology and the related environments in which designs are used—such as computer-generated icons that are integral to the operation of a computer system—there have been discussions recently as to whether U.S. design patent law and the current interpretation of section 171 provide sufficient protection for designs in digital and new technology environments. In particular, new designs in the digital economy in the forms of projections, holograms, and virtual and augmented reality (PHVAR) are presenting new challenges and considerations for industrial design protection systems across the globe. Several jurisdictions have recently amended or are now actively considering amendments to their industrial design protection laws and practice to take these advancements in technology into account and to provide more effective protection for these designs.

On December 21, 2020, the USPTO published a Federal Register Notice seeking public input on whether the USPTO’s interpretation of the “article of manufacture” requirement in the United States Code should be revised to protect digital designs that encompass new and emerging technologies. Comments received in response to this notice are available on Regulations.gov.