Design and Deviance: Patent as Symbol, Rhetoric as Metric -- Part 1
Charles E. Colman
William S. Richardson School of Law, University of Hawai'i at Manoa
August 1, 2015
55 Jurimetrics: The Journal of Law, Science, and Technology 419 (Summer 2015)
This project reveals the power of gender and sexuality norms in the deep discourse of pivotal American case law on design patents.
In Part 1 (Summer 2015), I show that late nineteenth-century cultural developments in the urban Northeast gave rise to a stigma surrounding the "ornamental" and "decorative" works under the then-exclusive legal purview of design-patent protection. Among the politically dominant segments of American society, the creation, appreciation, and consumption of design "for its own sake" grew increasingly intertwined with notions of decadence, effeminacy, and sexual "deviance."
In Part 2 (forthcoming Feb. 2016), I will examine influential design-patent decisions from the 1870s through the 1930s against this cultural backdrop. My close reading of these decisions will demonstrate that federal judges, particularly in leading cases decided by the Second Circuit, increasingly used design-patent disputes as a vehicle for the performance and endorsement of prevailing gender norms. The resulting doctrine relegated design patents to near-total irrelevance as a viable form of intellectual property protection for a large and crucial portion of the Twentieth Century.
[In a forthcoming monograph, "Patents and Perverts: The Hidden Moral Agenda of American Design Law" (Cambridge University Press forthcoming 2017), I will examine doctrinal distortions in U.S. copyright and trademark law that resulted from the judiciary's marginalization of design patents. Some of these distortions, including the perpetually problematic doctrines of "conceptual separability" and "aesthetic functionality," persist to this day -- even as an array of jurisprudential, social, and economic factors have facilitated the reemergence of design patents as a viable form of IP protection.]
Keywords: design, patents, IP, intellectual property, industrial design, copyright, fin de siecle, deviance, sex, sexuality, gender, theory, norms, Oscar Wilde, scholarship, law, society, humanities, legal history, semiotics
Date posted: August 10, 2014 ; Last revised: March 9, 2016