Whole Designs

74 Pages Posted: 12 Jan 2021 Last revised: 21 Aug 2021

See all articles by Sarah Burstein

Sarah Burstein

The University of Oklahoma College of Law

Date Written: 2021


In the past decade, there has been a renewed interest in the concept of patentable subject matter—that is, what kinds of things can you get a patent for? But this attention has, to date, been focused on utility patents, the patents that protect how things work. There has been scant attention paid to statutory subject matter and design patents, the patents that protect how things look. These patents have gained prominence in both practice and scholarship since the $1 billion verdict in Apple v. Samsung. The time has come to take the question of design patentable subject matter seriously. Today, the USPTO allows applicants to claim any visual characteristic of an article as a separate “design,” including small, immaterial, or functional fragments of an article. This Article argues that design patents should only be granted for whole designs—whole shapes, surface designs, or combinations—for articles of manufacture. This approach would better match the statutory text, allow for the development of intellectually coherent design patent doctrines, and better promote the progress of the decorative arts. It would also help define a clear domain for design patents to better channel designs among intellectual-property regimes.

Keywords: design patents, intellectual property, USPTO, patents

Suggested Citation

Burstein, Sarah, Whole Designs (2021). 92 Colo. L. Rev. 181 (2021)., Available at SSRN: https://ssrn.com/abstract=3752728

Sarah Burstein (Contact Author)

The University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

HOME PAGE: http://www.law.ou.edu/content/burstein-sarah

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