Beyond the Screen: What the USPTO’s New Design Patent Guidance Means for Canadian Companies

Last week, the U.S. Patent and Trademark Office (USPTO) published its “Supplemental Guidance for Examination of Design Patent Applications Related to Computer-Generated Interfaces and Icons”.[i] This new guidance was published, in response to feedback that the previous guidance was inflexible. Notably, the changes reflect a continued modernization of design protection, particularly in the context of emerging technologies, including virtual and augmented reality. 

While the guidance is U.S.-focused, it has clear implications for Canadian businesses and innovators in the digital realm who view visual appearance as a key competitive advantage. As interfaces, icons and computer-generated animated designs increasingly move beyond traditional screens and drive a user’s experience with a product or service, the question of what exactly can be protected has become more important than ever.

A Quick Refresher: Design Protection Basics

Generally, registered designs protect the visual features of a finished article. 

In Canada, these rights are known as industrial designs; in the United States, they are called design patents. Protectable visual features can include shape, configuration, pattern, ornament, or any combination of these elements. Protection can apply to an entire article or to a portion of an article.

Historically, design protection was closely tied to physical products. In the digital space, that translated into interfaces or icons shown on a display screen. As technologies evolve, interfaces and icons may no longer be tied to a conventional computer screen, raising questions as to how the “finished article” requirement is satisfied. 

What is New Under the USPTO Guidance?

First, the updated USPTO guidance expressly recognizes that projections, holograms, and other virtual and augmented reality designs of interfaces or icons for computer systems may constitute protectable subject matter, even when they are not displayed on a conventional computer screen.  However, transient, or disembodied pictures or three-dimensional images not tied to an article continue to fall outside the scope of protection. 

For example, a projected interface for a computer system may be protected because the “computer system” satisfies the article requirement and the interface is considered to be “for” that computer system rather than a transient or disembodied picture. Similarly, a virtual reality interface for a computer may be a protectable design. 

Second, the updated guidance removes the requirement to depict an article of manufacture in the drawings where the title and claim clearly identify the article. For instance, when the title and claim specify that an icon or interface is “for a display screen”, it is now acceptable to omit the display screen from the drawings altogether. Previously, applicants depicted the display screen to satisfy the article requirement, albeit in broken lines to indicate that it was unclaimed. 

How Does This Compare to Canadian Practice?

Canadian practice is already aligned with this latter development – the Industrial Design Regulations require that the drawings be sufficient to disclose the design fully, but permit the name of the finished article to be taken into account, and permit the design to be shown in the drawings in isolation.[ii] Additionally, the Canadian Intellectual Property Office (CIPO) Industrial Design Office Practice Manual provides examples, in which icons, interfaces, and computer-generated animated designs are shown in isolation, without depiction of the associated display screen.[iii]

A review of the Canadian industrial design database further reveals registrations for subject matter such as virtual reality display panels and display screens for virtual reality. This suggests that virtual and augmented reality designs are generally considered allowable design subject matter in Canada. Nevertheless, further guidance or modernization of Canadian industrial design law—particularly with respect to projections, holograms, and other emerging digital design formats—would be a welcome development.

What does this mean for Canadian companies? 

For Canadian companies creating digital interfaces, icons, or VR/AR features, the USPTO’s new guidance broadens what can be protected in the U.S. and makes securing design rights for computer‑generated elements more accessible. Because Canadian practice is already relatively flexible, businesses operating in both markets may find it easier to pursue coordinated protection strategies. 

Now is a good time for Canadian innovators to revisit their digital design portfolios and identify features—especially emerging or immersive interface elements—that could benefit from enhanced or earlier U.S. filings to strengthen competitive positioning across borders.

If you would like to discuss strategies for protecting computer‑generated interfaces and icons in Canada, please feel free to contact our team.