A Non-Obvious Design: Reexamining the Origins of the Design Patent Standard
Jason J. Du Mont
Max Planck Institute for Intellectual Property & Competition Law
August 25, 2009
Gonzaga Law Review, Vol. 45, No. 3, p. 531, 2010
Framed as a condition to patentability by the 1952 Patent Act, as opposed to the rubric of invention, it is now unquestionable that the nonobviousness requirement applies to both utility and design patents. However, a careful review of the history of the early design patent acts suggests that the ready application of this requirement to design patents was neither foreordained, nor remains appropriate today. Indeed, this Article will demonstrate why the rubric of invention was likely never intended to apply to design patents at all. Drawing from seldom viewed personal letters, drafts of bills, and patent commissioner decisions from the 19th century, I argue that the nonobviousness requirement was actually forced on design patents through an odd series of administrative, legislative, and judicial mishaps. It is clear from the countless number of new design bills proposed since these events that industrial design protection does not fit particularly well within the strict confines of utility patent precedent. Applying a historical lens, this Article establishes yet another basis for policy makers to free design patent standards from the unworkable and inappropriate nonobviousness requirement.
Number of Pages in PDF File: 79
Keywords: design patent, design, industrial design, non-obviousness, 103, obviousness, obvious, patent, product design, patent office, USPTOAccepted Paper Series
Date posted: August 26, 2009 ; Last revised: October 2, 2012
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