Design Patents: Mueller & Brean

Professor Janice Mueller & Daniel Brean have posted a new working-draft article on design patent protection. The article argues "that courts and the USPTO have previously unrecognized flexibility in how they apply the nonobviousness requirement to designs." The authors recommend, inter alia, that courts (1) recognize that nonobviousness jurisprudence (e.g., KSR) has "very limited, if any, applicability to design patentability"; (2) plant patent patentability requirements serve as a better example; (3) the perspective of a non-expert ordinary observer should be used when considering nonobviousness; and (4) design anticipation should be limited to "strict identity situations."

Read the article here.

2 thoughts on “Design Patents: Mueller & Brean

  1. This is a great article (admittedly I am biased because Mueller was an outstanding professor for me during my law school days). There are a lot of unsettled issues for design patent examination, such as how non-obviousness is determined and whether KSR applies to design patents, and the article identifies them and proposes some possible solutions. Worth a read for anyone who deals with design patent applications or design patent opinion work occasionally.

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