Can a design patent application claim priority to a utility non-provisional application?

A design patent application may claim priority to a pending utility non-provisional patent application, but not to a provisional patent application under 35 USC § 172. The drawings in the earlier filed non-provisional application must adequately support the drawings to be filed in the design application.

If a design patent application claims benefit under 35 USC 120 to a non-provisional application that directly claims the benefit of a provisional application, the design application cannot claim the benefit of the filing date of the provisional application [see MPEP 1504.20].

Can a utility non-provisional application claim priority to a design application?

Yes, a non-provisional utility application may claim priority to a design patent application provided that the design application provides proper support of the non-provisional application.

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Vic Lin

Vic Lin

Startup Patent Attorney | IP Lead Partner at Innovation Capital Law Group
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