Preprint
The Problem of Design Patents: Representation and Subject Matter Scope
Social Science Research Network : SSRN
SSRN
2022
Abstract
The design patent system has become incoherent. The system was created in a time when design meant “put[ting] a beautiful wrapper around the idea.” The legal system for design protection has lost sight of design’s creative power as it has been exercised throughout this past century. A fundamental shift in design thinking has moved toward solving problems, including those that are aesthetic. One consistent theme of the current criticisms is the system’s inability to affirmatively articulate a cohesive underlying theory and doctrine governing its subject matter. Recently, one proposal suggests that such a theory could emerge from an analysis of the changes in the design field over the past century. This Article fills that gap. In addition, various proposals are offered that flow from that work to address other troubling concerns. These leverage the strengths of the patent system, including the law’s ability to require ex-ante disclosure. Further, this Article also explores the semiotics of design patent images, which have an unappreciated impact on their substantive power. Design patents generally use reductive, static figures that show the design’s structural outlines, emphasizing line and edge. Text is minimized. The system’s default rules allow claims that are represented in their broadest forms and supported with minimal information. This is contrary to the treatment of utility patents, which are purported to be governed by the same rules. Perhaps most troubling, these sparse disclosures have likely impacted the legal system’s collective understanding of the possible definitions of design. Although designers have expanded their work to create multisensory experiences, design law has not evolved to consider such aspects as available for protection.Laws should evolve to serve their primary statutory purpose. By expanding the available formats and appearance of submissions for design patent applications to the PTO, the system can begin a decision-making process that considers the potential range of protection that considers both visual and multisensory forms of design
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Details
- Title
- The Problem of Design Patents
- Creators
- Amy L Landers
- Publication Details
- Social Science Research Network : SSRN
- Publisher
- SSRN
- Number of pages
- 1 Online-Ressource (62 p)
- Resource Type
- Preprint
- Language
- English
- Academic Unit
- Thomas R. Kline School of Law
- Identifiers
- 991021866836304721