The U.S. Supreme Court laid down the legal standard for what constitutes infringement of a design patent in the 1871 case Gorham v. White. The court’s decision, which remains law of the land today, set out what is known as the “ordinary observer test,” offering:

If in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such to deceive such an observer, inducing him (or her) to purchase one supposing it to be the other, the first one patented is infringed by the other.

The first design patent ever issued by the U.S. Patent and Trademark Office was granted to George Bruce – owner of a type foundry, a company that designs and distributes typefaces – for the use of fonts in type-casting machines. A quick search on the USPTO site will only produce a hand-written copy of this patent, “D1.”  Interestingly enough, the document doesn’t include an image or drawing – staples for today’s design patents – instead including a written description by Bruce explaining the ornamental and unique attributes of his design. Most of today’s design patents don’t include a written description, although they could if the inventor so desired, because the drawings are the most important feature of the application. Once issued, a design patent will be defined by its drawings.

When Bruce was awarded his design patent in 1841, the enforceable length was seven years. This was the case until 1861 when the USPTO adopted a system that gave inventors a choice between three and a half, seven or 14 years, with longer enforceability periods requiring a patent applicant pay larger fees. In 1982, the Patent Fee Act abolished the inventor’s choice and ushered in the 14-year term for design patents that is still used today.

Going down the list of patented designs for jewelry, utensils, car parts and even cases to transport wine, one can’t help but stumble upon the nagging portfolio of absurd design patents that grace the files of the USPTO today. Design patents that some would venture to say are erroneous are being used to stifle innovation and monopolize markets.

Most notable are the design patents that encompass portable electronic devices. There are design patents to cover the rounded edges of a smartphone and tablet; the rounded home button on smartphones; and even a design patent to cover the wedge-shape of a computer.  With segments of the technology market trying, and succeeding in most cases, to corner design patents on just about any ornamental design they can dream up, it makes one wonder if this will be the new normal.

One well-known high-tech company was awarded a design patent for the glass staircase in their Palo Alto, Calif. office. Let’s repeat that – a patent for a staircase. And what about the patent for the packaging on a smartphone? Yes, it exists. Perhaps the most absurd one I’ve seen in the past couple of years is titled, “Display screen or portion thereof with animated graphical user interface.” Or, in simple terms, the turning of a page on the interface of an e-reader. Yes, the very interface that has been around in physical form for centuries is now a patented animation on your portable electronic device.

These design patents are broad; too broad, in some people’s estimation. But the U.S. Patent Office is continuing to hand out design patents like candy. In turn, innovation will continue to be stifled because of inventors’ fear of litigation. For consumers, absurd design patents may diminish our choices and cause the prices of our beloved tech items to increase dramatically.

It remains to be seen if design patents are going to help one competitor force its way into being the only option for portable device users in the future, but it is clear that reform in this area can’t come too soon. This wasn’t what the patent system was designed to achieve, and I’m sure wasn’t what Bruce imagined for the system when his design patent was issued. He was actually quite candid in his application, noting he was not alone in his industry:

I do not pretend that I am the first who have cast the Types called Script, nor the first who have cast them of the size called Double Small Pica, nor to originality in the outlines of any of the types for which I now ask a patent, nor do I wish to prevent other founders from cutting and casting similar and better articles.

If only all inventors and assignees could be so humble.

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