While it may not be common to receive a prior art rejection for a design patent, it certainly can happen, especially if the design is broadly claimed. In utility patents, the issue of obviousness is an analysis of what a person having ordinary skill in the art would find to be obvious in light of the same or similar problem. When it comes to design patents, obviousness rests on the “ordinary observer” test, which is an analysis of the claimed design and its prior art seen as a whole instead of comparing the claimed design to the prior art design element by element. While the ordinary observer test requires a consideration of the design as a whole in the context of its environment features, the claim scope remains very important in terms of how the design will be examined.
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