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Abstract

Many firms invest heavily in the way their products look, and they rely on a handful of intellectual property regimes to stop rivals from producing look-alikes. Two of these regimes – copyright and trademark – have been have been closely scrutinized in intellectual property scholarship. A third, the design patent, remains little understood except among specialists. In particular, there has been virtually no analysis of the design patent system’s core assumption: that the rules governing patents for inventions should be incorporated en masse for designs. One reason why the design patent system has remained largely unexplored in the literature is that scholars have never explained how and why the system came to exist. This Article seeks to provide that account. We show how technological innovation in early American manufacturing (especially in the cast-iron goods industry) created unprecedented opportunities for creativity in industrial design, and a concomitant expansion in design piracy. We analyze manufacturers’ lobbying efforts that led to the first American legislative proposals for design protection, and we connect those proposals to antecedents in British copyright and design registration legislation. We also explain how these early proposals were transmuted into design patent proposals, and we explore the idiosyncratic political circumstances that surrounded the eventual passage of the design patent bill. We conclude by reassessing the modern design patent regime in view of insights drawn from our historical account.