How Design Patent Law Lost Its Shape

85 Pages Posted: 26 Feb 2020

Date Written: December 1, 2019


Under U.S. law, patents are available for “any new, original and ornamental design for an article of manufacture.” Today, the U.S. Patent and Trademark Office (USPTO) allows applicants to claim any “visual characteristics embodied in or applied to an article” as a separate “design.” The foundation of this “anything goes” regime is a 1980 decision from the U.S. Court of Customs & Patent Appeals (CCPA), In re Zahn.

This Article is the first to closely and critically analyze the CCPA’s majority decision in In re Zahn. It argues that the majority’s decision in Zahn was flawed and contrary to the plain text of 35 U.S.C. § 171. It concludes that Zahn should be overruled and the phrase “design for an article of manufacture” should be given its plain English meaning—i.e., it should be interpreted as protecting whole designs, not fragments.

As part of this analysis, this Article introduces a new taxonomy for use in discussions of “parts” or “portions” of “articles” or “products.” Specifically, it argues that we should distinguish between:

• A simple article – an article that is manufactured as one solid piece;

• A composite article – an article that is made from physically joining together one or more smaller articles;

• A component – an article that is joined with one or more others to form a composite article;

• An end product – a composite article (or machine) that is sold separately as a complete product; and

• A fragment – any physical part of an article that is not, and was not manufactured as, a complete article.

This taxonomy will help clarify important factual and policy distinctions between different types of claimed designs.

Keywords: intellectual property, design patents, patents, In re Zahn, CCPA

Suggested Citation

Burstein, Sarah, How Design Patent Law Lost Its Shape (December 1, 2019). 41 Cardozo L. Rev. 555 (2019), Available at SSRN:

Sarah Burstein (Contact Author)

Suffolk University Law School

120 Tremont Street
Boston, MA 02108-4977
United States

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