Visual Invention

46 Pages Posted: 12 Sep 2011 Last revised: 17 Jul 2015

See all articles by Sarah (Fackrell) Burstein

Sarah (Fackrell) Burstein

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: April 9, 2012


Recently, there has been a renewed interest in design patents and, in particular, in the issue of nonobviousness. Courts and commentators have long struggled with how the nonobviousness requirement should be applied to designs. This Article argues that the Federal Circuit’s current test for design patent nonobviousness is flawed and proposes several changes to that test. The approach proposed here will provide much-needed clarity in an unusually murky area of law and will also better promote the relevant policy goals.

Keywords: Intellectual property, design patents, industrial design

Suggested Citation

Burstein, Sarah, Visual Invention (April 9, 2012). 16 Lewis & Clark L. Rev. 169 (2012), Available at SSRN:

Sarah Burstein (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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