The Eye Alone is the Judge: Images and Design Patents

19 Pages Posted: 5 Oct 2012

Date Written: 2012


Design patents are an area of intellectual property law focused entirely on the visual, unlike copyright, patent, trademark, trade secret, or the various sui generis protections that have occasionally been enacted for specific types of innovation. Judges and lawyers in general are highly uncomfortable with images, yet design patents force direct legal engagement with images. This short piece offers an outsider’s view of what design patent law has to say about the use of images as legal tools, why tests for design patent infringement are likely to stay unsatisfactory, and what lessons other fields of intellectual property, specifically copyright, might take from design patent.

Keywords: images and design patents, copyright law, trademark law, patent law, patent infringement, copyright infringement, intellectual property

JEL Classification: K00, K10, K19

Suggested Citation

Tushnet, Rebecca, The Eye Alone is the Judge: Images and Design Patents (2012). Journal of Intellectual Property Law, Vol. 19, pp. 409-426, 2012; Georgetown Public Law Research Paper No. 12-149. Available at SSRN:

Rebecca Tushnet (Contact Author)

Harvard Law School ( email )

Cambridge, MA
United States

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