20 Pages Posted: 5 Oct 2012
Date Written: 2012
Courts are rarely asked to judge beauty. Such a subjective practice would normally be anathema to the ideal of objective legal standards. However, one area of federal law has a long tradition of explicitly requiring courts to make aesthetic decisions: the law of design. New designs may be protected as design patents, but only if they are “ornamental” in nature. As the U.S. Supreme Court has noted, “a design must present an aesthetically pleasing appearance. . . .” This study uses empirical and experimental approaches to test the hypothesis that courts tend to favor more attractive patented designs over less attractive ones. It relies upon a data set that includes all design patent decisions from 1982 until 2010 in which a court made a final determination of validity or infringement, with every design patent at issue therein classified as valid or invalid and infringed or not infringed. In a controlled experiment, human subjects rated the attractiveness of all designs at issue in all of these court decisions. The results show that, although the average attractiveness of patented designs has been stable over the past three decades, the average attractiveness of those designs found invalid has risen markedly. Where courts once appeared to impose a penalty on unattractive designs, they now seem not to discriminate between attractive and unattractive designs in terms of validity. This shift in empirical court outcomes matches a doctrinal shift away from aesthetic considerations by the Court of Appeals for the Federal Circuit, as a result of which the “ ‘ornamental’ requirement of the design statute means that the design must not be governed solely by function. . . .” Thus, both legal doctrine and empirical data reflect a decline in the importance of aesthetic considerations in design patent decisions by federal courts over the last three decades.
Keywords: Design patent, design, patent, patent litigation, aesthetics, beauty, ornamental, intellectual property, design protection, validity, invalidity, infringement, experiment, experimental law, empirical, judge, Court of Appeals for the Federal Circuit
JEL Classification: K00, K10, K11, K19, K20, K21, K22, K23, K29, K30, K33, K39, K40, K41, K42, K49, D41, L12, L41, L43
Suggested Citation: Suggested Citation
Torrance, Andrew W., Beauty Fades: An Experimental Study of Federal Court Design Patent Aesthetics (2012). Journal of Intellectual Property Law, Vol. 19, No. 2, 2012. Available at SSRN: https://ssrn.com/abstract=2156943