Design Patents are a Mess

I attended a terrific conference organized by Stanford Law School on Friday and Saturday about design patents.  The main takeaway is that this doctrine is incoherent.  Nobody is sure what design patents are supposed to do.  Nobody knows how to judge designs under the standards developed for utility patents. When I wrote about design patents years ago, I had the same feeling, but was unsure because when you are unfamiliar with a topic, there is the possibility that you just don’t get it.  When lots of smart people from different perspectives don’t get it, though, that’s probably the law’s fault.

Design patents suffer from a problem that plagues some areas of maritime law and other subjects.  People stopped paying close attention to it a long time ago.  Statutes enacted in the nineteenth century are out-of-date.  The Supreme Court doesn’t grant cert. on new cases.  And so on.  The Apple-Samusung litigation turned the spotlight back onto design patents, and now people are wondering “What the heck is this?”  Maybe that will lead to some action by Congress, but I’m not holding my breath.

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