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1504.02 MANUAL OF PATENT EXAMINING PROCEDURE It is not necessary for the examiner to cite or apply prior art to show that functional and/or hidden features are old in the art as long as the examiner has properly relied on evidence to support the prima facie lack of ornarnentality of these individual features. If applicant wishes to rely on functional or hidden features as a basis for patentability, the same standard for establishing ornarnentality under 35U.S.C. 171 must be applied before these features can be given any patentable weight. See MPEP § l504.01(c). In evaluating a statutory bar based on 35 U.S.C. 102(b), the experimentaluse exceptionto astatutory bar for public use or sale (see MPEP §2133.03(e» does not usually apply for design patents. See In re Mann, 861 F.2d 1581, 8 USPQ2d 2030 (Fed. Cir. 1988). However, Tone Brothers, Inc. v.Sysco Corp., 28 F.3d 1192,1200, 31 USPQ2d 1321,1326 (Fed. Cir. 1994) held that "experimentation clirected to functional features of a product also containing an ornamental design may negate What otherwise would be considered a public use within the meaning of section 102(b)." See MPEP § 2133.03(e)(6). Registrationof a design abroad is considered to be equivalent to patenting under 35 U.S.C. 119(a)-(d) and 35 U.S.c. 102(d), whether or not the foreign grant August 2001 1500-20 is published. (See Ex parte-Lancaster; 151 USPQ 713 (Bd. App. 1965); Ex parte Marinissen, 155 USPQ 528 (Bd. App. 1966); Appeal No. 239-48, Decided April 30, 1965, 151 USPQ 711, (Bd. App. 1965); Ex parte Appeal decided September.S, 1968, 866 0.0. 16 (Bd. App. 1966). The basis of this practice is that if the foreign applicanthas received the protection offered in the foreign country, no matter what the protection is called ("patent," "Design Registration," etc.), if the United States application is timely filed, a claim for priority will vest. If, on the other hand, the U.S. application is not timely filed, a statutory bar arises under 35 U.S.c. 102(d) as modified by 35 U.S.C. 172. In order for the filing to be timely for priority purposes and to avoid possible statutory bars, the U.S. design patent application must be made within 6 months of the foreign filing. See also MPEP § 1504.10. The laws of each foreign country vary in. one or more respects. The following table sets forth the dates on which design rights can be enforced in a foreign country (INID Code (24» and thus, are also useable in a 35 U.S,C. 102(d) rejection as modified by 35 U.S.C. 172. It should be noted that in many countries the date ofregistration or grant is the filing date.
DESIGN PATENTS Date(s) Which Can Also Be Used Country or Organization for 35 U.S.c. 102(d) Purposes! Comment (INID Code (24))· AT-Austria Protection starts on the date of publication of the design in the official gazette AU-Australia Date of registration or grant which is the filing date BG-Bulgaria Date of registration or grant which is the filing date BX-Benelux (Belgium, Luxem- Date on which corresponding bourg, and the Netherlands) application became complete and regular according to the criteria set by the law CA-Canada Date of registration or grant 1504.02 CH-Switzerland Date of registration or grant which Minimum requirements: deposit is the filing date application, object, and deposit fee CL-Chile Date of registration or grant CU-Cuba Date of registration or grant which is the filing date CZ-Czech Republic Date of registration or grant which is the filing date . DE-Germany Date of registration or grant The industrial design right can be enforced by a court from the date • ofregistration although it is in force earlier (as from the date of filing-as defined by law). DK-Denmark Date of registration or grant which is the filing date EG-Egypt Date of registration or grant which is the filing date ES-Spain Date of registration or grant FI-Finland Date of registration or grant which is the filing date FR-France Date of registration or grant which is the filing date . . 1500-21 August 2q01 ..
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