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Disclosing Designs

While patent scholars have subjected disclosure doctrines to considerable scrutiny in the context of utility patent law, very little has been written about the role of those doctrines in design patent law. At first blush, this is not surprising: modern design patent documents usually contain short disclosures comprised primarily of drawings, accompanied by very little text. Although this might suggest limited aspirations for design patent disclosures, the story is more complex. Design patents contain only a pro forma claim; it is the disclosure that defines the scope of the protected design. Moreover, although the modern practice of relying primarily on visual disclosure (and a mere pro forma claim) is well-established, many early design patents relied heavily on textual disclosure and plural claiming. In this paper, we present the results of new historical and empirical research on disclosure practice in design patents. We use this research as a basis for examining the role of disclosure in early design patent practice, and critiquing some modern decisions applying disclosure doctrines to design patents

A test to detect association between autosomal and sex-linked loci in random mating populations: an example with Drosophila melanogaster

International audienc

Disclosing Designs

The disclosure function figures prominently in many accounts of the utility patent system. But what of its role in the design patent system? Should it be dismissed as trivial? And if so, what are the practical consequences for design patent doctrine in view of the fact that the doctrines that implement the disclosure function in utility patent law also apply to design patents by statutory mandate? The disclosure theory posits that patent documents disclose technical information that serves as a quid pro quo for the patent grant. Even aside from controversies about whether the disclosure function is robust for utility patents, the lack of fit with design patents may seem self-evident: the design patent disclosure is not intended to convey technical information. Its chief purpose is to provide notice to the public as to the subject matter that the design patent protects, as the claims do in utility patents. Perhaps Judge Rich had this in mind when he wrote the opinion for the en banc court in Racing Strollers, Inc. v. TRI Industries, Inc., observing that the best mode requirement is not applicable to design patents and that complying with the remaining requirements of simply entails that the document contain illustrations ... depicting the ornamental design

The Origins of American Design Patent Protection

Many firms invest heavily in the way their products look, and they rely on a handful of intellectual property regimes to stop rivals from producing look-alikes. Two of these regimes—copyright and trademark—have been closely scrutinized in intellectual property scholarship. A third, the design patent, remains little understood except among specialists. In particular, there has been virtually no analysis of the design patent system’s core assumption: that the rules governing patents for inventions should be incorporated en masse for designs. One reason why the design patent system has remained largely unexplored in the literature is that scholars have never explained how and why the system came to exist. This Article seeks to provide that account. We show how technological innovation in early American manufacturing (especially in the cast-iron goods industry) created unprecedented opportunities for creativity in industrial design and a concomitant expansion in design piracy. We analyze manufacturers’ lobbying efforts that led to the first American legislative proposals for design protection, and we connect those proposals to antecedents in British copyright and design registration legislation. We also explain how these early proposals were transmuted into design patent proposals, and we explore the idiosyncratic political circumstances that surrounded the eventual passage of the design patent bill. We conclude by reassessing the modern design patent regime in view of insights drawn from our historical account

Virtual Designs

Industrial design is migrating to the virtual world, and the design patent system is migrating with it. The U.S. Patent and Trademark Office (USPTO) has already granted several thousand design patents on virtual designs, patents that cover the designs of graphical user interfaces for smartphones, tablets, and other products, as well as the designs of icons or other artifacts of various virtual environments. Many more such design patent applications are pending; in fact, U.S. design patent applications for virtual designs represent one of the fastest growing forms of design subject matter at the USPTO. Our project is the first comprehensive analysis of design patent protection for virtual designs. We first take up the question of virtual designs as design patent-eligible subject matter, a question that has not yet been tested in the courts. We show that longstanding principles of design patent jurisprudence supply an answer to the question, with surprisingly little need for adaptation. We then present the results of an empirical study analyzing all issued U.S. design patents on virtual designs and their prosecution histories. Here we show how utility patent metrics for quality and value can be extended to design patents. Using these metrics, we show that design patents on virtual designs fare at least as well in quality and value as do design patents on other types of designs. In fact, design patents on virtual designs fare better in some respects. And, finally, we conclude by identifying issues that are likely to arise in anticipated future litigation over patents on virtual designs

The Origins of American Design Patent Protection

Many firms invest heavily in the way their products look, and they rely on a handful of intellectual property regimes to stop rivals from producing look-alikes. Two of these regimes—copyright and trademark—have been closely scrutinized in intellectual property scholarship. A third, the design patent, remains little understood except among specialists. In particular, there has been virtually no analysis of the design patent system’s core assumption: that the rules governing patents for inventions should be incorporated en masse for designs. One reason why the design patent system has remained largely unexplored in the literature is that scholars have never explained how and why the system came to exist. This Article seeks to provide that account. We show how technological innovation in early American manufacturing (especially in the cast-iron goods industry) created unprecedented opportunities for creativity in industrial design and a concomitant expansion in design piracy. We analyze manufacturers’ lobbying efforts that led to the first American legislative proposals for design protection, and we connect those proposals to antecedents in British copyright and design registration legislation. We also explain how these early proposals were transmuted into design patent proposals, and we explore the idiosyncratic political circumstances that surrounded the eventual passage of the design patent bill. We conclude by reassessing the modern design patent regime in view of insights drawn from our historical account

Functionality in Design Protection Systems

In comparison to functionality doctrine in trade dress cases, scholars have paid relatively little attention to the role of functionality doctrine in design protection systems such as the U.S. design patent system and the EU Community Design regime. Yet functionality considerations potentially affect many validity and scope determinations in the design protection area. In this Article, we critically evaluate judicial application of the functionality doctrine in design protection systems, focusing on the U.S. design patent and EU design protection regimes. We argue that the doctrine as applied in these settings is too often aimless and inconsistent. Some simple doctrinal refinements would help, particularly in the U.S., where the Federal Circuit should definitively adopt the “dictated by” standard and should distinguish explicitly between functionality for invalidity purposes and functionality for scope purposes. Ultimately, a more carefully-considered theoretical justification for the functionality doctrine in design protection systems is needed, one that recognizes that trade dress functionality and design protection functionality serve different goals