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Overcoming The “Impossible Issue” Of Nonobviousness In Design Patents, Daniel Harris Brean, Janice M. Mueller
Overcoming The “Impossible Issue” Of Nonobviousness In Design Patents, Daniel Harris Brean, Janice M. Mueller
Daniel Harris Brean
The United States offers legal protection for designs - the overall aesthetic appearances of objects - through the patent system. To obtain a U.S. design patent has long required something more than novelty. Just as the patentability of a utilitarian device mandates a “nonobvious” advance over earlier technology, the patentability of a new and ornamental design requires that it differ from prior designs to an extent that would not have been “obvious to a designer of ordinary skill who designs articles of the type involved.” Ostensibly promoting progress in design, Congress in 1842 shoehorned design protection into the existing utility …