Another myth is that only artistic (or aesthetically appealing) designs can be patented. It’s true that that Patent Act expressly requires that a patentable design be “ornamental.” And the Supreme Court has suggested—albeit in dicta—that this means “a design must present an aesthetically pleasing appearance.” So perhaps design patent protection should be limited to designs that show some degree of aesthetic creativity. Or, at least, to situations where consumers actually care about how a product looks.
But under current Federal Circuit case law, there is no such requirement. Basically, the Federal Circuit will deem a design to be “ornamental” whenever there are alternative product designs available. (This is based on a string of logic that begins with the highly questionable premise that “ornamental” is the opposite of “functional,” although a full discussion of that issue is far beyond the scope of a blog post.) And there are almost always alternative designs available. Therefore, as Chris Buccafusco has pointed out, the Federal Circuit has effectively read “ornamental” out of the statute.
So now we live in a world where design patents can be obtained for drill bits,
The business end of surgical instruments,
Pipe coupling supports,
And all manner of connector/interface systems. This one was issued to Apple last week, for what appears to be the MagSafe 2 port:
What do you think? Should designs like these be considered ornamental? Should they be protectable as IP at all? And, if so, is this the right IP regime to use?