71 Am. U. L. Rev. 1221 (2022).
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in this area—including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this 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 U.S. Court of Appeals for 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 U.S. International Trade Commission and the use of administrative procedures to challenge design patents in the Patent Trial and Appeal Board. These contributions contextualize the design patent system within the broader debates about U.S. intellectual property policy.
* Professor of Law, University of Oklahoma College of Law. Professor Burstein thanks Kayla G. Molina for excellent research assistance and Lisa Bowles for excellent library assistance and support. The Authors thank Thomas Cotter, George Raynal, as well as the participants in the 2021 Works-In-Progress Intellectual Property Colloquium and the 2020 Intellectual Property Scholars Conference for helpful comments on earlier drafts of this Article.
** Professor, Texas A&M University School of Law; Professor, Dwight Look College of Engineering, Texas A&M University; Fellow, The Center for Innovation Policy, Duke University School of Law; former advisor, U.S. Patent and Trademark Office (USPTO). The arguments in this writing are the Authors’ and should not be imputed to the USPTO or to any other organization.