Wire framing is a technique that defines shape and contour of a design with lines created at changes in form, such as when a flat surface transitions into a curved surface. Wire frame lines often are created by CAD drawing programs. Although wire framing is not prohibited by the USPTO, care must be taken to ensure that wire frame lines are interpreted properly. Failure to take such care can result in objections, rejections, and delay during prosecution, and can substantially weaken infringement arguments during litigation.
The key to staying out of trouble is to clearly identify the wire frame lines as contour lines rather than as lines of demarcation (e.g., outline, hard edges, seams), or as surface indicia. This can be done by using a thinner line weight, placing periodic breaks in the lines, and by including appropriate language in a feature statement following the figure descriptions. If this is not done, then a court may not construe the wire frame lines as contour lines, as in Simplehuman v. Itouchless Housewares & Prods., 506 F. Supp. 3d 830 (N.D. Cal. 2020) (discussed below).
Early Examples of Wire Framing in Design Patents
Two early examples of wire framing in design patents are D543,492 (Billet Lower Control Arm) and D555,529 (Multi Chambered Whistle). Figures in both patents combine wire frame surface patterns with conventional shading technique.
The filed applications for these two patents did not mention or explain the meaning of the wire frame lines. However, during prosecution of the control arm patent (App 29/244,007), counsel for the applicant explained in a telephone conversation with the examiner that the computer-generated line work on the interior edges of the billet lower control arm was not surface ornamentation. The examiner then added the following language at the end of the figure descriptions for clarification: — The wire frame surface patterns on the interior edges of the billet lower control arm are for interpretation of the surface character and in no way represents surface ornamentation. —
Likewise, during prosecution of the whistle patent (App 29/276,484), the examiner inserted the following statement at the end of the figure descriptions: — The drawings show both wire frame contour lines and surface shading lines. It is understood that all of the continuous solid lines in the drawings represent wire frame contour lines. —
A patent search reveals there are now approximately one hundred thirty United States design patents with wire frame figures and feature statements describing the meaning of the wire framing. Many more design patents exist with wire frame figures and other methods of identifying the wire frame lines such as thinner line weight and periodic breaks. Two design patents with wire frame drawings but without such feature statements or other methods of identification are D644,807 (Slim Open Trash Can) and D729,485 (Dual Recycler). These two patents were sued on in Simplehuman v. Itouchless Housewares & Prods., 506 F. Supp. 3d 830 (N.D. Cal. 2020).
During claim construction in Simplehuman, the plaintiff argued that the wire frame lines represented shading and contour lines. The Court disagreed, reasoning primarily that the disputed lines were shown in views where they could not possibly represent shading and also were conspicuously absent from other areas that should have had contour lines. Plaintiff also argued that a photograph contained in the appendix confirmed that the disputed lines represented shading and not seams. The court acknowledged that prosecution history ordinarily is always relevant to claim construction, but then noted that the examiner had excluded the photograph under 37 C.F.R. § 1.84(m) because it was likely to contradict the rest of the specification. The court held plaintiff could not rely on the photograph to contradict the rest of the specification when that was the very reason the photograph had been excluded by the examiner.
Practice Point: If patent drawing figures have wire frame lines that are intended to be contour lines and not lines of demarcation, then they must be identified as such by a lighter line weight, periodic line breaks, and/or a descriptive feature statement.
Current USPTO Practice Regarding Wire Framing
The USPTO does not prohibit use of wire frame lines in drawing figures. However, patent examiners will object to drawings and may issue a rejection if the lines are not drawn properly. Below are some examples of office action excerpts with regard to the use of wire frame lines:
App 29/733,616 (Non-Final Rejection) 11/23/2021
Issued as D961,468 (Hood)
Wire Frame Drawing Figure 1 Originally Filed (no breaks in lines):
Office Action Excerpt:
“The claim is indefinite and nonenabling because the drawings use a technique known as “wire framing” to illustrate the design in this application, which does not convey the appearance in a sufficiently clear manner. Wire frame lines are employed throughout the drawings to frame in areas of contour. While the wire-frame technique is useful for machine and machinists’ reading, it can be confusing to the human eye. That is, the lines create an unrealistic impression of the exact appearance of the design. The drawings in a design patent must show the article as it would appear to a human observer, whereas these lines likely do not appear on the actual article. If all lines are taken for lines of demarcation, the design could be misunderstood.
For designs of this nature, only the following should be shown with solid line: outlines, seam lines, sharp/hard edges, and linear detail. These types of lines are known as lines of demarcation and would be visible on the actual design. Wire frame lines are not normally visible on the actual design. Wire frame lines should be distinguished from the demarcation lines with random breaks and thinner line weights. In addition, excess surface lining created by a computer assisted design (CAD) process is neither necessary nor advisable and should be removed, as it only confuses the design. In fact, in the present disclosure, there is confusion concerning which lines are truly demarcations, and which lines are simply excess CAD generated machine readable lines. Moreover, the excess frame lines blur together in some areas and are indistinguishable from each other. In order to properly clarify the disclosure, applicant must lighten and add some random breaks to the CAD related frame lines.”
Replacement Sheet With Figure 1 Modified to Include Random Line Breaks:
The D961,468 feature statement is “[t]he broken lines, and the areas within the broken lines illustrate portions of the hood and form no part of the claimed design.” There is no mention of wire frame lines, but since random breaks were inserted in the lines, there did not have to be an explanation.
App 29/716,727 (Final Rejection) 04/05/2022
Issued as D549,751 (Bubble Maker)
First Replacement Drawing:
Examiner’s Objection:
“The shape lines are not connected, example at “A” below, the surface shadings have been applied randomly which questions where the flat surfaces start, example at ”B” below, and wireframes cannot be distinguished from the object lines in places, example at “C” below. Although wire frame lines are permissible in design patent drawings, their use in the instant application is confusing, making it difficult to determine the difference between the wire frame lines and actual seams and edges found on the design. The annotated portions are merely examples but the said issues reside throughout the drawings. To overcome the objection, all shape lines should be connected, 37 CFR 1.84(1), all surface shadings should be applied accurately if they have antecedent bases in the original drawings, and all wire frame lines should be reduced in weight for a finer appearance to clearly distinguish them from the uniformly thicker edge and profile lines.”
Second Replacement Drawing:
App 29/727,372 (Non-Final rejection) 12/07/21
Issued as Patent D960,264 (Game Net Base)
First Replacement Drawing
Examiner’s Objection:
“The combination of wire frame lines, object lines, and contour/shade lines shown in Figs. 9-16 is confusing. Wire frame lines mark points on the design where the contour of the object changes. They serve the same purpose as line shading/contour lines and combining the two can be visually confusing. Further, although wire frame lines are permissible in design patent drawings, they can be confusing and make it difficult to determine the difference between the wire frame lines and actual seams found on the design. Additionally, the current use of line weights is improper because all line weights are the same for the wire frame lines, object lines, and contour/shade lines. Object lines should be heavy thicker line weight, and the contour/shade/wire frame lines should be lighter and thinner line weight in order to differentiate the two. Lines and strokes of different thicknesses may be used in the same drawing where different thicknesses have a different meaning. 37CFR 1.84 (I) Refer to the following annotated Fig.11 for an example.”
Examiner Objection (continued):
“Correction is required to either use wire frame lines or traditional line drawings that include shading. If wire frame lines are used, the weight of the lines must be reduced to clearly distinguish them from edge lines. If traditional line drawings are used, then shading must be used to clearly show the contours of the surfaces. Spaced lines for shading are preferred. These lines must be thin, irregularly broken, as few in number as practicable, must contrast with the rest of the drawings, and be of a lighter line weight than object lines. 37 CFR 1.84(m)”
Second Replacement Drawing (second embodiment):
Please note this post is for general informational purposes only. It is not legal advice and does not create an attorney client relationship.
