What’s the purpose of a patent? If you answered “to promote scientific progress and development by giving incentives to inventors,” then you’re at the top of the class. The overarching goal of patents is to speed up society’s technological development or, as it’s put in the U.S. Constitution, “to promote the progress of science and useful arts.”
That’s what makes it so strange to contemplate the growth of so-called “design patents.” This form of intellectual property is not to protect new technology, or science, or anything “useful” at all (having utility actually disqualifies a design patent application) but rather for “ornamental designs.” That’s right, just the way something looks can be patented.
For example, take Gillette’s patent D415315, which expired last October. Invoked in the case Gillette Company v. BK Gifts, filed just before that patent expired. According to Dennis Crouch of the University of Missouri Law School and the patent law blog PatentlyO, Gillette is not claiming any infringement on its technologies, nor that BK Gifts developed any new utility, just that BK Gifts’ products look somewhat like Gillette’s products. In fact, patent D415315 does not even include the razors themselves, just the general shape of the head holding the razors.
Another example is the patent for rounded edges on smartphones. That’s not a joke; it really does exist. It, too, is also at the core of a lawsuit. Let that sink in for a minute: any edge that is rounded on a phone, tablet, or other mobile design could get you sued.
Some may assert that design patents are equally valid as other forms of intellectual property. After all, we have copyrights for music and fiction books; aren’t those, in some way, “ornamental”? The first point to make is that copyright law is distinct and separate from patent law. Moreover, to the extent that there is a parallel to design patents in the area of copyright, the closest analogue would be fashion designs, and copyright explicitly does not cover fashion. In fact, it is precisely because fashion designs are not covered by copyright that high-end designers continually have an incentive to innovate and produce new styles, as the older styles inevitably will be copied and marketed to the masses.
The consequences of continuing to grant absurd design patents are enormous. Because the subjects are so simple, and designers usually do not have the time to comb through the U.S. Patent & Trademark Office’s database, anyone designing a new product that even looks similar to something else could find themselves on the wrong end of a lawsuit.
It is possible to knock these patents out of a courtroom by using the invalidity argument; namely, that these patents are far too broad, and there are examples of prior art from before the patent. (See this 2001 tablet specification from Microsoft.) Many suspect that the patent covering rounded edges on a tablet is just that kind – too fragile for actual battle – though Gilette’s may be stronger. But should we even be granting these patents in the first place?
The reason patents exist is to give inventors an incentive to improve our lives in some way. Whether harnessing electricity to power civilization, or developing products that allow us to communicate across the globe, or any other new creation that saves us time, energy, resources, money or makes our lives noticeably better.
With all due respect to product designers, and while I appreciate them putting in the time to make their products look nice, what are they going to patent next? Shapes? Colors? General sounds like grunts? Instead of wasting everyone’s time and clogging up the patent system by fighting over these small things, we should go back to focusing on developing new and exciting technologies that actually improve our lives. As a consumer, I am unconcerned with the oval shape of Gillette’s razor head. I am concerned with the actual practical use that gives me a closer shave, a better look, and how much that will cost.