Investigating Design

79 Pages Posted: 16 Feb 2022 Last revised: 26 Jun 2023

See all articles by Mark P. McKenna

Mark P. McKenna

UCLA School of Law

Jessica M. Silbey

Boston University - School of Law

Date Written: February 10, 2022


Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.

Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap and is drawn from original data collected over several years interviewing and observing designers where they work. Our interviews provide a rich background on the design field(s), the nature and value of design, and designers’ goals and values.

Studying designers and the practice of design is not only economically and culturally relevant, but significant as a matter of legal policy because design has been an enduring puzzle in intellectual property law. Design is not archetypal subject matter for any of the IP systems. Indeed, Congress created the design patent system in 1842 precisely because it didn’t believe design fit any of the then-existing regimes. But design patent, like copyright and trademark (which have since expanded to accommodate at least some design) has always struggled with design’s hybrid nature. More specifically, each of those systems has attempted to separate out the functional aspects of design in order to channel protection for those features to utility patent law. Our data suggest that this challenge might be insurmountable. While there are good reasons for IP doctrines to attempt to channel protection, separation of functional features runs counter to modern designers’ interdisciplinarity and explicit goals of coherence and integration.

Keywords: intellectual property, design, design patent, trademark, empirical, qualitative

Suggested Citation

McKenna, Mark P. and Silbey, Jessica M., Investigating Design (February 10, 2022). University of Pittsburgh Law Review, Vol. 84, Available at SSRN: or

Mark P. McKenna (Contact Author)

UCLA School of Law ( email )

385 Charles E Young Dr E
Los Angeles, CA 90095
United States

HOME PAGE: http://

Jessica M. Silbey

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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