Why the Future of Design Patent Protections Will Rely on Modern Neuroscience, Not Constitutional and Legal Reversionism

Abstract

Our academic colleagues describe the current design patent protections system as a muddle, which the Oxford English Dictionary defines as “a state of disorder or . . . confusion.” We would posit that the current design patent system is not in a state of disorder or confusion. Rather, the system is suffering from large-scale variability in critical legal decision-making by the finders of fact, be they judges or juries. The ability to protect design rights grows increasingly unreliable for design patent owners. Litigation to protect highly valued design assets in an increasingly competitive marketplace has become costly, time-consuming, and unpredictable. There are two proposed approaches to solving this problem: 1) turn to outdated and unproven legal tests and methods from other intellectual property (IP) domains in the hope that new case law and methods will solve the problem or 2) turn to science to better understand the problem related to inconsistent outcomes and develop methods that objectively solve the problems impacting design IP litigation outcomes. We urge adoption of the second approach to push design patent litigation forward through the application of science and empiricism, not backward based on application of outdated and structurally flawed legal precedents. The problem we face is one of decision variability, not basic structural mechanics related to how one actually determines infringement or non-infringement.

Keywords: ordinary observer test, design patent infringement, intellectual property, empirical research, decision variability, neuroaesthetics, neuroscience, research methodology