Extra credit assignment-3

For this post, I am going to talk about design patent rejections. Patentlyo has a good post about this articulating the problems of the current state. Apparently, the blogger combined 1049 file histories of design patents for the 12 month period. And of those, 5 were rejected on novelty grounds and 8 on obviousness. The majority of the patents(82%) were never rejected. According to the most recent USPTO report, design patents have a allowance of 90%. Clearly, something is wrong because the numbers seem to indicate that the US design patent is operating not as a patent system, but rather as a registration system. It's also interesting to see that the article talks about how it's easier to prosecute a design patent to issuance than to register a product design as a trade dress.

So why is that over 90% of design patents are allowed? Is it because of the unclear concepts of obviousness of design patents??

There are two steps in obviousness of a design patent.

First is to find a single reference showing design characteristics as the claimed design. After primary references are found, other references may be used to create a design that has same visual appearance as the claimed design.

I just wanted to clarify as the design patent issue seems to be most troubling.