Hello Francois and Jean:
Design patents, in the US, at least, were created in the
mid-nineteenth century, during a time when "design" was conceived of
as ornament applied to the surface of, say, cast-iron stoves (see
Howell John Harris, '“The Stove Trade Needs Change Continually”:
Designing the First Mass‐Market Consumer Durable, ca. 1810–1930,'
Winterthur Portfolio 43, No. 4 (Winter 2009), pp. 365-406).
The definition of "design" in US intellectual property (IP) law was
initially deliberately opposed to that of "utility." Not much has
changed in those definitions since then, even though at various points
in history (e.g., the 1920s) there have been serious, sustained
efforts by Congress to significantly rewrite or overturn the design
patent laws, and/or to absorb design protection into other IP regimes
such as copyright or trademark/trade dress.
The WIPO phrasing is so awful because, I'm guessing, it is based on US
IP law. Even though the language is remarkably ill-adapted to
describe, say, the form of an iPhone (which has very little "applied
ornament"), Apple's attorneys have nonetheless done a truly
spectacular job of using design patents as a means of protection.
Design patents still have the advantage of being easier and faster and
cheaper to obtain than utility ("regular") patents, so a smart lawyer
can still use them to advantage.
Carma Gorman, Ph.D.
Associate Professor, School of Art and Design
Southern Illinois University Carbondale
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