Uncreative Designs

80 Pages Posted: 5 Jul 2023 Last revised: 8 Feb 2024

Date Written: August 22, 2023

Abstract

Conventional wisdom tells us that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result of the Federal Circuit making it more difficult to invalidate designs as anticipated or obvious. This Article argues that sub-Feist designs exist because “originality” (at least, in the sense of “minimal creativity”) is not really “lower” than novelty or nonobviousness—it’s just different. This has implications for how we think about the law and theory of copyright and patent law, as well as specific implications for design patent law and practice. Importantly, this suggests that we should take the word “original”—which is also an explicit statutory requirement for design patents—seriously. We should not assume that a design that qualifies, under the Patent Act, as “novel” and “nonobvious” is also “original” under the Feist standard. And if, as the Supreme Court has held, the Feist standard originality is a requirement of the Progress Clause, we should not let applicants use design patents to evade that requirement.

Keywords: design patents, patents, intellectual property, originality, Feist, designs

Suggested Citation

Burstein, Sarah, Uncreative Designs (August 22, 2023). 73 Duke L.J. __ (Forthcoming), Suffolk University Law School Research Paper No. 20-22, Available at SSRN: https://ssrn.com/abstract=4496762

Sarah Burstein (Contact Author)

Suffolk University Law School

120 Tremont Street
Boston, MA 02108-4977
United States

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