by Sarah Burstein
The design patent system is over 170 years old; however, the law of design patents is woefully underdeveloped and undertheorized. One particularly important open question has to do with the very nature of the protected subject matter—what, exactly, is “the patented design”? Accordingly, it is not clear whether the use of a claimed shape on a different type of product or a visual representation of a patentee’s commercial embodiment constitutes infringement. This Article argues that neither use should be deemed to be infringing because the patented design should be conceptualized as the design as applied to a specific type of product—not as something akin to a copyrighted “work” (a concept this Article will refer to as a “design per se”). Accordingly, particular shapes and configurations—even those that are patented—would remain free to be adapted to different types of products. This conclusion is supported by the nature of product design and policy goals including the promotion of the decorative arts and protection of free expression. This analysis also has implications for the larger policy debate over how designs should be protected as intellectual property.
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