Normally, drawings in a patent application must be submitted in black and white. However, in some cases, color drawings are the only practicable medium to display
subject matter that is to be patented. This may arise, for example, when the invention itself involves utilizing colors in a certain fashion in computer graphics. In
such cases, color drawings cannot be included with an original application, or substituted into an existing application, without including a petition (with an
associated fee) showing why the color drawings are necessary and including certain language in the brief description of the drawings in the specification. A detailed
discussion and an example petition are included below.
Color drawings may be included in a patent application where the drawings are "necessary as the only practical medium by which to disclose the subject matter sought to
be patented in a utility or design patent application or the subject matter of a statutory invention registration" (see 37 C.F.R. § 1.84(a)(2)). The color drawings must
be of sufficient quality such that all details in the drawings are reproducible in black and white in the printed patent. Color drawings are not permitted in
international applications or in an application, or copy thereof, submitted under the Office electronic filing system. The USPTO will accept color drawings in utility
or design patent applications and statutory invention registrations only after granting a petition under 37 C.F.R. § 1.84(a)(2) explaining why the color drawings are
necessary. Any such petition must include the following:
(i) The fee set forth in § 1.17(h);
(ii) Three (3) sets of color drawings; and
(iii) An amendment to the specification to insert (unless the specification contains or has been previously amended to contain) the following language as the first
paragraph of the brief description of the drawings:
The patent or application file contains at least one drawing executed in color. Copies of this patent or patent application publication with color drawing(s) will be
provided by the Office upon request and payment of the necessary fee.
(37 C.F.R. § 1.84(a)(2)). To view an example petition, click Here.
As noted above, it is important to remember that the paragraph of item (iii) must be added as the first paragraph of the brief description of the
As noted above, color drawings can only be filed where such drawings are shown to be necessary. As such, a petition for color drawings will likely fail where the colors
are only included for illustrative reasons, such as to more clearly show the difference between lines in a color graph. Color drawings should be considered where
conversion into black and white would cause a loss of detail that would obscure certain subject matter sought to be patented.