Disclosing Designs

Abstract

While patent scholars have subjected disclosure doctrines to considerable scrutiny in the context of utility patent law, very little has been written about the role of those doctrines in design patent law. At first blush, this is not surprising: modern design patent documents usually contain short disclosures comprised primarily of drawings, accompanied by very little text. Although this might suggest limited aspirations for design patent disclosures, the story is more complex. Design patents contain only a pro forma claim; it is the disclosure that defines the scope of the protected design. Moreover, although the modern practice of relying primarily on visual disclosure (and a mere pro forma claim) is well-established, many early design patents relied heavily on textual disclosure and plural claiming. In this paper, we present the results of new historical and empirical research on disclosure practice in design patents. We use this research as a basis for examining the role of disclosure in early design patent practice, and critiquing some modern decisions applying disclosure doctrines to design patents.

Keywords: design patent, disclosure, claims, drawings, written description, specification, enablement, best mode, indefiniteness, utility patent, industrial design

JEL Classification: O34, O31, O38, D02