Design Patents: Law Without Design

29 Pages Posted: 9 May 2014

See all articles by Peter Lee

Peter Lee

University of California, Davis - School of Law

Madhavi Sunder

Georgetown University Law Center

Date Written: May 7, 2014


Design patents have recently burst onto the intellectual property stage, but they are surprisingly underdeveloped for a body of law that is more than a century and a half old. Design patents are, quite simply, a body of law without design: there is little coherent theoretical underpinning for this long overlooked form of intellectual property. Now, as design patents are poised to assume greater prominence in the legal and economic realms, the time is ripe for examining myriad justifications for exclusive rights in design in order to develop a richer theoretical foundation for this body of law. To that end, this Article draws from statute, doctrine, legislative history, and academic commentary to identify various theoretical justifications for design patents related to promoting progress, beautifying the human environment, rewarding creative labor, and reducing consumer confusion and promoting distinctiveness. We critically examine the cogency of these justifications and identify hidden tensions among them. Our ultimate aim is to help develop a body of design patent doctrine that is more accountable to theory. We conclude that even the most persuasive and defensible justifications for design patents counsel a limited right at best.

Keywords: IP theory, design patents, design theory, intellectual property, copyrights, trademarks, trade dress, patents, standardization

Suggested Citation

Lee, Peter and Sunder, Madhavi, Design Patents: Law Without Design (May 7, 2014). Stanford Technology Law Review, Vol. 17, p. 277, 2013, UC Davis Legal Studies Research Paper No. 380, Available at SSRN:

Peter Lee (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

Madhavi Sunder

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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