by Dennis Crouch
The chart below shows the number of design patents granted each calendar year (orange) going back to 1993. The figures for 2018 are current through the end of August 2018. 2018 figures have also been extrapolated to the end of the calendar year — predicting an all-time-high of 31,000+ design patents issued in 2018. In the shadow-grey background the chart also shows the number of design patent applications filed each year as reported by the PTO (These applications are ordinarily kept secret unless the application results in a patent).
Take away: More design patents than ever, but I don’t know if we are progressing?
What’s NOT to like about design patents? Easy, cheap and fast to obtain. Design applications also are almost never substantively challenged by PTO examiners, not even on 103. Never challenged in or out of the PTO on 101-exception grounds. Almost never challengable on claim ambiguity [especially after the recent Fed. Cir. decision that 2-D is OK]. Fed. Cir. refuses application of KSR for any 103 tests [applies an old CCPA test inconsistent with KSR]. No Markman decisions for a judge to define claim scope. Jury infringement determinations barely tied to undefined claim scope. Jury presentations of legally-irrelevant functional and utility advantages. Widespread use for scams by “invention promotion” companies. A special damages statute, etc.
It comes across as snarky and disingenuous for someone so desirous to ignore the plain difficulties of force-feeding design patents into a utility framework to then pose the tone of “who would not want.”
So you would never counsel real world clients to obtain design patents (and reap all of those real world advantages) just because the applicable patent statutes under controlling Fed. Cir. interpretations makes no sense? I.e., do you plan to stop practicing patent law until Congress totally re-writes patent law to your satisfaction?
[I was hoping for a substantive rebuttal, or even a legal challenge by some defendant, to some of those 12 substantive design patent issues, not just a miss-representation that I support all of them remaining the way they are.]
Did I ever indicate that counseling clients to take advantage of the law is something out of bounds given the inane attempt to force-fit design patents into a utility patent framework?
A: no.
You have an odd jump to this apparent strawman while your posts STILL come across as snarky and disingenuous.
“[I was hoping for a substantive rebuttal, or even a legal challenge by some defendant, to some of those 12 substantive design patent issues, not just a miss-representation that I support all of them remaining the way they are.]”
Typing a snarky post is not the way to get the substantive rebuttal that you may have hoped for. All your post does is come across as snarky with NO indication of ANY substantive design patent issues TO BE rebutted. In others words, your snark did not present an issue in a substantive matter to which a rebuttal would have been rebutted. No reasonable person would have even conceived that THAT is what you were hoping for.
Perhaps a changing perception of “potency” is driving this.
I mean, in the past, designs were registered domestically but not in foreign jurisdictions because it was seen as expense for no sufficient benefit.
But now, the perception has changed. Apple, anybody?
Now, for relatively little outlay, one can aquire a registered enforceable exclusive right that can deliver oodles of cash. And even if not, it has become a jumbo-sized “KEEP OUT” sign. Not only in the USA. Consider the potency of the EU Registered Design Right. International filers are aware of that fact, as well as of the Apple saga. The courts (and juries, I suppose) are responsible for deciding how potent a cheaply acquired exclusive right is to be.
One more thought on the presented graph:
Is there a more or less standard “lag” between application date and grant date?
The graph may be more informative if the numbers were NOT aligned by using the place of “year” as the same for both, given that most typically (I presume) both events – per item – do not occur in the same year.
There must be better ways of displaying pipeline process data.
Aside from the force-fed issue (a structural one), I would be leary of the tone of “numbers.”
As a general principle, ever increasing numbers of properly granted patents should be recognized as a good thing.
Instead of being a good thing, the tone of “maximalist” is used as a derogatory weapon.
Too often though, the tone of “numbers” is used as a “oh N0, there must be TOO MANY.” This “too many” then is a segue into attacking patents, either by assaulting designations of presumes validity, or by questioning those who may be owners of the legal property rights – often skipping over examination quality and instead focusing on “patent quality.”
This also innately (and unduly) glosses over the Quid Pro Quo aspect – the notion that for ANY duly granted patent, a particular “advance**” has been exchanged – BOTH sides getting something in the bargain. Once that merit has been achieved, the further actions in the markets of property should be purely positive signs that having fully alienable property was recognized right from the start of the US experiment.
** advance, of course in quotes because “promote” carries with it more than “advance” or “progress” in any linear, or even non-linear sense. Any student of innovation can tell you that often ground-breaking innovations that provide quantum leaps in progress often first appear as steps backward from the current state of the art, or from any of the step-wise advances that so many lay people think of (and that are more “comfortable” for established companies).
“More design patents than ever, but I don’t know if we are progressing?”
How are you defining “progressing?”
Why use that term (as opposed to promoting)?
Progress is but one aspect of promote, as I am sure that you are aware.
What does it even mean to progress (or promote) when it comes to the laws of design patents (force fed into utility law construct)?
I similarly have the question – what does it mean “To promote the Progress of Science and useful Arts” in the context of design patents? In a paper long ago, I suggested that the commerce clause and TM law is likely the best traditional IP analogy.
I can certainly entertain the notion that the very concept of “design patents” should be scrapped (perhaps being “redundant” with existing other forms of protection that protect “expression” (copyright) or the business aspects of using expression in commerce (the entirely different Constitutional driver found in trademark law).
As can be noted, my views on “force-fitting” a non-utilitarian item into a framework of law built for utilitarian reasons can only lead to bas turdization.
As to “promote” versus “progress,” the clear point there is that “promote” has always meant more than “progress.” This is tied to the analogy that I have used in the past contrasting a “nice” desire to pave a gridwork of streets with a (more appropriate to the nature of innovation) paving of a parking lot.
The gridwork of streets, while “aestheticly” more pleasing, does not reflect the nature of innovation. Instead, the “parking lot” wherein any and all “turns” are enabled is more in line with promoting future innovation.
The “easy” view is that “better” utility comes from the gridwork of streets and thus there “must be” some “advance” in every patent.
But this “must” is a fallacy.
The nature of innovation is in fact better served with a parking lot approach: paving everything in all directions because no one knows (and no one can predict) what the future direction innovation will take. When viewed in this perspective, “promote” in the advertising notion outshines “promote” in the advancing notion, and even seemingly backward items can be properly appreciated as promoting.
Well at least your honest about the “pave over everything” concept. Gotta love it when the truth leaks out. Or pours out.
Don’t be thick.
The parking lot is a good thing.
“Science” refers to art works, including designs, and “useful arts” refers to inventions.
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