More than meets the eye: Design patents and the next frontier in patent reform

Can a more than century-old design patents system keep up with modern innovation?

Perhaps one of the most famous design patents ever granted. Image credit: U.S. Patent and Trademark Office
The design patent system has its roots in the ante-bellum era.
In the late 1830s, a revolutionary new product hit the American consumer marketplace: cast-iron stoves, chairs, utensils and other goods featuring elaborate patterns worked into the metal.

Until then, goods such as these had been plain and purely functional – metalworking technology had not progressed to the point where anything else was feasible.

It was a New York manufacturer and entrepreneur, Jordan Mott, who invented a new process – “thin-casting” – that enabled manufacturers to incorporate elaborate patterns and designs into cast-iron goods. While American consumers today might take for granted the decorative elements in appliances and housewares – the sleek look of a Cuisinart mixer or the scrollwork in a metal lawn chair – Mott’s innovation was a sensation among American consumers.

As law professors Jason DuMont and Mark Janis chronicle in their account of the origins of intellectual property and design:

Advertisements began to emphasize the ornamental attributes of cast-iron goods, and, for the first time, some cast-iron goods came to be perceived as works of art.

Mott’s innovation helped launch a consumer goods revolution that continues to this day. Designs are integral to almost every category of consumer products, from housewares to electronics to furniture and clothing.

But Mott’s contributions didn’t stop there. His efforts to protect his innovations led to the development of a new branch of intellectual property law – design patents – that is of growing relevance to innovation in the modern age.

Today, many of the biggest global names in technology and manufacturing – – brands such as Apple, Google, Microsoft, Samsung and Nike – are also among the biggest holders of design patents granted under the same system created in Mott’s day. Moreover, interest in design patents is growing.

From 2009 to 2013, according to the United States Patent and Trademark Office (USPTO), the number of design patent applications jumped by 40 percent. In March, the USPTO issued its 700,000th design patent, which went to the inventor of the Leapfrog GS.

But while cutting edge firms are using design patents to protect their intellectual property, some argue that the more than century-old design patent system is an increasingly imprecise fit to the demands of modern innovation.

Design patents, for example, have increasingly become the subject of high-stakes litigation – such as between Apple and Samsung in their “smartphone wars.” Other cases have involved the manufacturer of Crocs against the retailer Walgreens for allegedly selling copycat shoes; Skechers versus Fila; and sink manufacturer Kohler against one of its rivals.

For this special package, Republic 3.0 gathered a variety of perspectives from leading intellectual property experts on what they see as weaknesses in the current system and the reforms they would propose. We also offer a “primer” on the basics of design patents from an expert at the USPTO. Together, these pieces provide a blueprint for reform.

While Congressional interest remains high in innovation and economic growth, how to strengthen the design patent system should be part of this discussion.

We hope you take a look:

  • A Q&A with USPTO patent attorney David Gerk on the basics of designs patents;
  • Stanford University law professor Mark Lemley on how the current rules for awarding damages in design patent infringement case might discourage innovation;
  • Georgetown University law professor Rebecca Tushnet on the conceptual challenges of patenting designs; and
  • Intellectual property expert Julie Hopkins on how to bring more transparency to the current system and align it with international practices.
  • EVENT: More than meets the eye (Capitol Hill Briefing)