A big (maybe the biggest) design patent myth is that it’s very difficult to get a design patent. Or, to put it differently, the substantive requirements are so difficult to meet that only a small number of extraordinarily creative designs can survive PTO review and win design patents.
The truth is, under current Federal Circuit law and PTO practice, it’s actually pretty easy to get a design patent. Of course, “easy” and “difficult” are relative terms. But recent empirical work by Dennis Crouch shows that, in recent years, the allowance rate has been over 90%. No matter how you define it, that doesn’t seem very “difficult.”
But the numbers only tell part of the story. For example, there may be selection effects at work—maybe 90% of applications are granted because people are only applying to patent their most creative designs. But the patents themselves tell a different story.
For example, this patent was recently issued for a “Garment Hanger”:
And this one claims a design for a “Cylinder Earplug”:
This one is entitled “Bottle”:
(For readers who are familiar with patent law, I should note that none of these claim priority dates earlier than 2010.)
Finally, here is one that recently caught the attention of at least two other intellectual property professors (see commentary by James Grimmelman here and Rebecca Tushnet here). D598,183, for a “Slipper”:
If designs like these have been successfully patented, it can’t be that difficult to get a design patent—no matter how you define “difficult.” To be clear, I’m not trying disparage these designs or their inventors. But these are hardly examples of extraordinary design genius.
And these aren’t isolated examples. The PTO issues design patents for trivial and uncreative designs every week. (Want more examples? I keep a running log here.)
So what’s going on here? Is the PTO simply abdicating its examining duties? Or is there something else going on? And what happens to patents like these in litigation?
In future posts, I’ll look more closely at some of the substantive requirements for design patents and explore some of the reasons why it’s become so easy—too easy, really—to get (and keep) design patents.