Does § 101 Apply to Design Patents?

By Sarah Burstein, Professor of Law at the University of Oklahoma College of Law Over the past few years, I’ve had various people ask me if 35 U.S.C. § 101 applies to design patents. Now, I hear that the same question was raised at one of Senator Coons & Tillis’ recent § 101 roundtables. This is one of those rare design patent questions that actually has a clear answer:     No, § 101 does not apply to design patents. See In re Finch, 535 F.2d 70, 71–72 (C.C.P.A. 1976). Section 101 provides that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” On its face, this language may seem to apply to all patents. But when this language was written, there was only one type of patent—the type we now refer to as utility…

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