Intelligent Design

65 Pages Posted: 1 Nov 2017 Last revised: 11 Oct 2018

See all articles by Christopher Buccafusco

Christopher Buccafusco

Duke University School of Law

Mark A. Lemley

Stanford Law School

Jonathan S. Masur

University of Chicago - Law School

Date Written: October 31, 2017


When designers can obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are warranted when they serve as needed incentives to encourage designers to invest in creating new socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime — copyright law, design patent law, or utility patent law. Unfortunately, those screens are no longer working. Designers are able to obtain powerful IP protection over the utilitarian aspects of their creations without demonstrating that they have made socially valuable contributions and without paying substantial fees that weed out weaker designs. This is bad for competition and bad for consumers. In this article, we integrate theories of doctrinal and costly screens, and we explore their roles in channeling IP rights. We demonstrate how these two types of screens can serve as complements in the efficient regulation of design protection, and we illustrate the inefficiencies that have arisen through their misapplication in copyright and design patent laws. Finally, we propose a variety of solutions that would move design protection towards a successful channeling regime, balancing the law’s needs for incentives and competition. Those proposals include improving doctrinal screens to weed out functionality, making design protection more costly, and preventing designers from obtaining multiple forms of protection for the same design.

Keywords: utilitarian, trade dress, Star Athletica, useful article, pictorial, PTO, obvious, novelty, separability, apple, fashion, duration, trademark

Suggested Citation

Buccafusco, Christopher J. and Lemley, Mark A. and Masur, Jonathan S., Intelligent Design (October 31, 2017). Duke Law Journal, Vol. 68, p. 75 (2018), Stanford Law and Economics Olin Working Paper No. 509, University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 827, U of Chicago, Public Law Working Paper No. 654, Cardozo Legal Studies Research Paper No. 530, Stanford Public Law Working Paper, Available at SSRN: or

Christopher J. Buccafusco (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Mark A. Lemley

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Jonathan S. Masur

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773.702.5188 (Phone)


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