The Truth About Design Patents

64 Pages Posted: 7 Jan 2022 Last revised: 4 Aug 2022

See all articles by Sarah Burstein

Sarah Burstein

Suffolk University Law School

Saurabh Vishnubhakat

Yeshiva University - Benjamin N. Cardozo School of Law; Duke University School of Law

Date Written: 2022

Abstract

Design patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area—including old ones that still get cited—rely on statistics and empirical conclusions that were methodologically questionable from the start, or have become outdated, or both. In this paper, we make two sets of contributions to that important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the Federal Circuit, and we update the findings of those studies. Second, we consider a set of institutional questions that, to our knowledge, the prior literature has not even broached. Beyond the federal courts, we explore design patent enforcement at the ITC and the use of administrative process to challenge design patents in the Patent Trial and Appeal Board. These contributions put the design patent system into much-needed context with broader debates about U.S. intellectual property policy.

Keywords: design, patent, empirical, application, rejection, litigation, enforcement, invalidation, USPTO, courts, ITC

Suggested Citation

Burstein, Sarah and Vishnubhakat, Saurabh, The Truth About Design Patents (2022). 71 Am. U. L. Rev. 1221 (2022), Texas A&M University School of Law Legal Studies Research Paper No. 22-08, Available at SSRN: https://ssrn.com/abstract=4001099

Sarah Burstein

Suffolk University Law School

120 Tremont Street
Boston, MA 02108-4977
United States

Saurabh Vishnubhakat (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Duke University School of Law

Durham, NC

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