The Federal Circuit recently issued an opinion in the case In re Owens affecting the range of permissible claim changes in design patents. In re Owens, Appeal No. 2012-1261 (Fed. Cir. Mar. 26, 2013). Unlike utility patents, where the claims are defined by words, in design patents, the claims are set forth in drawings illustrating the claimed ornamental design. The In re Owens case is an appeal from a decision by the U.S. Patent and Trademark Office’s (USPTO) Board of Patent Appeals and Interferences (BPAI), and the case turned on whether specific aspects of the drawings in the design application at issue were supported by an earlier-filed design application.
Owens, an inventor for The Procter & Gamble Company, filed a design patent application for a bottle, referred to herein as the '709 application, and that application ultimately issued as a design patent. The claimed design apparently covers the bottle design for the Crest® Pro-Health Care line of mouthwashes. Figures 1-3 of the '709 application are reproduced below.
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