To earn patent protection, a claimed product design must be “nonobvious.” Yet while nonobviousness has been described as “the heart” and “cornerstone” of the utility patent system, in the design patent context, the term has become next to useless. Instead of actually policing nonobviousness in design, modern courts grant patent rights to any work that is not an exact replica of another. The problem, judges maintain, is that comparing one visual design against another demands the use of aesthetic judgment and aesthetic judgment is an instinctual, subjective process incapable of legal definition. Recent neuroscientific studies of aesthetic judgment dispel some of the mystery surrounding perception of industrial design. These studies show, contrary to longstanding judicial assumptions, that design innovation tends to reduce visual enjoyment. We prefer the “aesthetic middle”: the range of designs comprised of not the avant-garde or the tried and true, but something in between. New insight into the functioning of the aesthetic middle shows the need for a reevaluation of the nonobviousness standard and offers guidance for returning the standard to its former place as a meaningful limit on design patent protection.
Iowa Law Review
Iowa L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/1140