51 Pages Posted: 6 Jul 2015 Last revised: 7 Jun 2016
Date Written: July 19, 2015
Design patents have been repeatedly criticized for being too expensive. Many of these critics argue that the cost of design patent examination is a fatal flaw in the system. This Article utilizes recent insights in costly screen theory to evaluate whether the costliness of design protection is really as problematic as the current literature suggests. It argues that there is a real cost to granting bad design patents and that the cost of design patent examination serves a valuable function — independent of its function of facilitating substantive review — by screening out at least some bad design patents. At the same time, this costly screen is unlikely to discourage the creation of valuable designs in any significant way. This suggests that the costliness of design patents may actually have a net positive effect on social welfare. This Article also considers the implications of these conclusions for other issues of design patent policy.
Keywords: design patents, patents, intellectual property, IP, Patent & Trademark Office, costly screens
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