Overcoming the 'Impossible Issue' of Nonobviousness in Design Patents
Janice M. Mueller, Daniel Harris Brean · UKnowledge (University of Kentucky) · 2009
The United States offers legal protection for designs-the overall aesthetic appearances of objects-through the patent system.To obtain a U.S. design patent has long required something more than novelty.Just as the patentability of a utilitarian device mandates a "nonobvious" advance over earlier technology, the patentability of a new and ornamental design requires that it differ from prior designs to an extent that would not have been "obvious to a designer of ordinary skill who designs articles of the type involved."Ostensibly promoting progress in design, Congress in 1842 shoehorned design protection into the existing utility patent system.From that time forward, the design patent system has languished from prolonged inattention rather than benefited from any purposeful development.Even the initial imposition of a qualitative requirementfor "invention" in designs (from which the modern requirement of nonobviousness derives) was likely the product of a typographical error Failing to appreciate the fundamental distinctions between designs and utility inventions, the legislature and judiciary have repeatedly sought to assimilate these very different types of intellectualproperty. Nowhere in the design patent system is this assimilation more harmful than in the imposition of the nonobviousness requirement.