Moving Beyond the Standard Criticisms of Design Patents

Abstract

The U.S. design patent system has been widely criticized. Certain arguments against design patents have been made so often — and accepted so uncritically — that one might believe that the case against design patents was overwhelming and that the failure of the system was beyond dispute. These standard criticisms can be grouped into three main categories: (1) designs aren’t patent subject matter; (2) patent requirements are not “appropriate” for designs; and (3) patent protection is overbroad. This article examines each of these standard criticisms and concludes that they are not persuasive. Therefore, the case that is commonly made against design patents is not as strong as the existing literature suggests. Moreover, these standard criticisms tend to obfuscate, rather than answer, the difficult policy questions raised by any design protection scheme. In order to meaningfully evaluate the current system and proposed alternatives, these questions need to be confronted directly, not hidden behind oft-repeated litanies about the supposed evils of design patents.

Keywords: intellectual property, patents, design patents, industrial design, design