Designing Design Patent Subject Matter

Sarah Burstein, The Article of Manufacture in 1877, 32 Berkeley Tech. L.J. 1 (2017). Mark McKenna Designs for articles of manufacture are eligible for design patent protection under section 171 of the Patent Act if they are “new, original and ornamental.” As is clear on the face of this provision, design patent subject matter is limited to designs for “articles of manufacture”—other types of design, including architectural design, would seem to be excluded. But what exactly is included? What is a “design for an article of manufacture”? In an important new article, The Article of Manufacture in 1877, Sarah Burstein provides critical historical context on that question. Courts and the Patent Office have in recent years given “article of manufacture” a very broad interpretation. They have, for instance, accepted as design patent subject matter the design of a spray pattern for a water fountain, the design of the shank…

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