The Patented Design

70 Pages Posted: 13 Jan 2016 Last revised: 17 Apr 2016

See all articles by Sarah Burstein

Sarah Burstein

The University of Oklahoma College of Law

Date Written: 2015


The design patent system is over 170 years old; however, the law of design patents is woefully underdeveloped and undertheorized. One particularly important open question has to do with the very nature of the protected subject matter — what, exactly, is “the patented design”? Accordingly, it is not clear whether the use of a claimed shape on a different type of product or a visual representation of a patentee’s commercial embodiment constitutes infringement. This Article argues that neither use should be deemed to be infringing because the patented design should be conceptualized as the design as applied to a specific type of product — not as something akin to a copyrighted “work” (a concept this Article will refer to as a “design per se”). Accordingly, particular shapes and configurations — even those that are patented — would remain free to be adapted to different types of products. This conclusion is supported by the nature of product design and policy goals including the promotion of the decorative arts and protection of free expression. This analysis also has implications for the larger policy debate over how designs should be protected as intellectual property.

Keywords: design patents, patents, intellectual property

Suggested Citation

Burstein, Sarah, The Patented Design (2015). 83 Tenn. L. Rev. 161 (2015), Available at SSRN:

Sarah Burstein (Contact Author)

The University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States


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