The Design Patent Bar: An Occupational Licensing Failure

36 Pages Posted: 14 Sep 2018 Last revised: 17 Oct 2018

See all articles by Christopher Buccafusco

Christopher Buccafusco

Benjamin N. Cardozo School of Law

Jeanne Curtis

Benjamin N. Cardozo School of Law

Date Written: September 6, 2018

Abstract

Although any attorney can represent clients with complex property, tax, or administrative issues, only a certain class of attorneys can assist with obtaining and challenging patents before the U.S. Patent & Trademark Office (PTO). Only those who are members of the PTO’s patent bar can prosecute patents, and eligibility for the patent bar is only available to people with substantial scientific or engineering credentials. However much sense the eligibility rules make for utility patents—those based on novel scientific or technical inventions—they are completely irrational when applied to design patents—those based on ornamental or aesthetic industrial designs. Yet the PTO applies its eligibility rules to both kinds of patents. While chemical engineers can prosecute both utility patents and design patents (and in any field), industrial designers cannot even prosecute design patents. This Article applies contemporary research in the law and economics of occupational licensing to demonstrate how the PTO’s application of eligibility rules to design patents harms the patent system by increasing the costs of obtaining and challenging design patents. Moreover, we argue that the PTO’s rules produce a substantial disparate impact on women’s access to a lucrative part of the legal profession. By limiting design patent prosecution jobs to those with science and engineering credentials, the majority of whom are men, the PTO’s rules disadvantage women attorneys. We conclude by offering two proposals for addressing the harms caused by the current system.

Keywords: intellectual property, gender bias, STEM, technology, women, occupational licensing, patent, trademark, access, legal profession, administrative, standards

Suggested Citation

Buccafusco, Christopher J. and Curtis, Jeanne, The Design Patent Bar: An Occupational Licensing Failure (September 6, 2018). Cardozo Legal Studies Research Paper No. 565. Available at SSRN: https://ssrn.com/abstract=3245319 or http://dx.doi.org/10.2139/ssrn.3245319

Christopher J. Buccafusco (Contact Author)

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Jeanne Curtis

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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