Design Patents–Why?

I will, of course, have much to say about yesterday’s maritime opinion from the Supreme Court, but before I do that, let’s talk about patents.

A student asked me a question yesterday that was pretty interesting.  Why do we have different patents for functional inventions and designs?  Why not just have a single type of patent that covers both aesthetic and functional aspects that are claimed before the PTO?  Granted, utility patents and design patents have different terms of length, but other than that they are basically identical.

I don’t have a great answer.  Design patents were first provided in an 1842 statute, I think.  My research indicates that, to some extent, this was an indirect way of protecting trademarks at the national level, though with nothing approaching the strength of modern trademark law.  For the most part, though, design patent has been a backwater in IP law since then.

Thoughts on this are welcome.

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3 Responses

  1. What a great question! Another answer I can think of is that the two types of patents last for different durations depending on what they’re protecting. Perhaps it’s thought that functional inventions deserve to be protected longer?

  2. Brett Bellmore says:

    Perhaps relevant is that, at first, the US only had functional patents, design patents first being introduced something like 50 years later?

  3. Sarah Burstein says:

    Interesting questions, Gerard. I’m curious about what you’ve found in your research that indicates that the 1842 statute was a way to protect trademarks. Everything I’ve seen indicates that designers wanted protections for their product designs per se — not that they were worried about source identification or other trademark-type concerns.

    Also, if you haven’t seen it, Mark Janis and Jason Du Mont have a forthcoming article that discusses the lobbying/impetus behind the 1842 statute: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1862182