posted by Gerard Magliocca
I will, of course, have much to say about yesterday’s maritime opinion from the Supreme Court, but before I do that, let’s talk about patents.
A student asked me a question yesterday that was pretty interesting. Why do we have different patents for functional inventions and designs? Why not just have a single type of patent that covers both aesthetic and functional aspects that are claimed before the PTO? Granted, utility patents and design patents have different terms of length, but other than that they are basically identical.
I don’t have a great answer. Design patents were first provided in an 1842 statute, I think. My research indicates that, to some extent, this was an indirect way of protecting trademarks at the national level, though with nothing approaching the strength of modern trademark law. For the most part, though, design patent has been a backwater in IP law since then.
Thoughts on this are welcome.