Design and Deviance: Patent as Symbol, Rhetoric as Metric (Parts 1 and 2)

Abstract

This project, initially published as a two-part series of articles entitled 'Design and Deviance: Patent as Symbol, Rhetoric as Metric,' reveals the unrecognized power of gender and sexuality norms in the deep discourse of pivotal American case law on design patents.

In Part 1, I argue 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 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, I examine influential design-patent decisions from the 1870s through the 1930s against that cultural backdrop. My close reading of these decisions shows that federal judges, particularly those in the Second Circuit, increasingly used design-patent disputes as a vehicle for the performance and endorsement of gendered values. 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.

The arguments advanced in these articles will be presented in expanded form in a forthcoming monograph, tentatively titled Patents and Perverts: The Hidden Moral Agenda of American Design Law (Cambridge University Press 2017).

Keywords: design, patents, intellectual property, legal history, humanities, rhetoric, semiotics, gender, sexuality, masculinity, homosexuality, morality, power, aestheticism, Wilde, stigma