The Origins of American Design Protection

Patents, Copyright and Trademark and Intellectual Property

Article Snapshot


Jason Du Mont and Mark Janis


Indiana Law Journal, Vol. 88, No. 3, pp. 837-880, 2013


Design patents protect the visual appearance of a product. Innovation in early American manufacturing lead to expanded design piracy. Lawmakers created the design patent system in 1842. The proposal was modelled on British copyright protection for design.

Policy Relevance

Insisting that design patents resemble other patents does not work well. Design patent law should be modelled on copyright law.

Main Points

  • Design patents protect ornamental designs for a period of 14 years; today, courts interpret design patents narrowly.
  • Most observers do not understand why design patents were created; copyright and trademark protection is also available, and some propose that design patents be abolished.
  • In the 1830s, American manufacturers developed new methods of making cast iron goods, and elaborate new designs were produced.
    • Copyright did not protect industrial products, and there was no federal trademark law.
    • Design piracy became a widespread problem, especially of fabric prints like calicoes.
  • In 1841, makers of products at the margins of traditional copyright and patent protection, including ironworkers, furniture designers, a confectioner, and a maker of fireworks, lobbied for design protection in the United States.
    • The draft law was based on British law protecting designs using copyright.
    • They proposed protection for designs printed on fabric, molded, or stamped on metal.
  • In 1842, due to the Patent Commissioner’s ambitions, and the government’s need for patent fees, design protection was passed as a patent law, not a copyright, with little debate.
  • Design patent law should be reevaluated.
    • Courts have failed to set out clear guidance for how design patents should be interpreted; some insist that the design be described in words.
    • Courts try to ensure that the design is different from previous designs, but the law only requires an original design.


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