If a design that was the same as yours is cited in that patent, then the prospects for you getting a patent is unlikely. HOWEVER, you should consult a patent attorney who can evaluate (as a trained eye) whether there is novelty and non-obviousness to your design relative to the various designs your refer to. Although, given what you said you saw, the chances of your design being novel and non-obvious are small, I have handled (and seen others handle) cases where a legitimate non-obvious difference DID exist AND protecting that aspect was economically "worth it" the applicant. I say that because it makes no sense to spend money protecting even a patentable design if the protection is so narrow that others can essentially avoid infringement at little to no cost (in terms of both money and the market).
This information is intended to be general and educational in nature. It is not intended to be specific legal advice or establish an attorney-client relationship. I require a signed retainer agreement from a potential client to establish an attorney-client relationship and before I will provide specific legal representation.
You need to talk face to face with a Patent Attorney because there are factor you may not consider for a Design Patent. there is functionality and ornamental value to consider and you only mention the ornamental similarity. While it might be enough to exclude your application, it may not.
Talk with a Patent Attorney, it will be worth your money and hopes,
USPTO Registered Patent Attorney, Master of Intellectual Property law, MBA I am neither your attorney, nor my answers or comments in AVVO.com create an attorney-client relationship with you. You may accept or disregard my free advice in AVVO.com at your own risk. I am a Patent Attorney, admitted to the USPTO and to the Florida Bar.
I honestly think that you need a registered patent attorney or agent to make the call for you. It can save a lot of time and money for a registered patent attorney or agent to take a look so you don't waste time and money filing. Some, like me, would even take a look for no cost.
Because the patent examiner reviewed your ornamental design during the prosecution of an application to patent another design, you have a good argument -- but not a legal presumption -- that your design is patentably distinct than the design being examined. Your design MAY be patentable. But, as noted by my colleague, all the standard patent requirements must still be met. You need to speak with your own patent attorney. Good luck.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
You need to know that if your design has been public information for more than a year you are barred from obtaining a valid patent, even with the benefit of grace period. If your design was cited as prior art in an issued design patent, you are almost certainly barred unless it's one of the "rocket-docket" design cases, the first of which (D685,381) issued in July 2013 as the first patent under the FTF system.
If you want to pursue a patent, you need to get to a patent attorney that is up to speed on FTF and do it promptly or you will not be able to file a valid patent application, if it is not already too late.
I would rate your chances as under 5% given just the bare facts you gave. A review of the facts would hopefully increase your odds, but I strongly doubt it.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
Short Answer: Not very good, but...
I am a bit confused by your question. If "your" design was shown in the patent, then what is it that you want to patent? remember, a patent can't be issued for something that is not new. Another point to keep in mind is that design patents have a narrow scope that is essentially limited to what is shown in the drawings. The flip side of this rule is that even small differences between a "new" design and a patented design may be enough for a new patent. I suggest that you speak to an attorney to find out what your options are. Good Luck.