Design Patent Law's Three Little Words

U.S. design patent law protects the visual characteristics of articles of manufacture. For many years, major manufacturers of athletic footwear have protected their visually iconic designs with design patents, fueling a global market valued at nearly $100 billion. Today, however, shoe design has arrived in the digital universe. Digital sneakers such as Gucci’s Virtual 25 and Nike’s “Our Force Ones” can be “worn” only in virtual worlds but have substantial real world economic value. Yet U.S. design patent law makes it difficult—some would say impossible—to protect those designs, on the ground that they do not satisfy the statutory requirement for a design for an “article of manufacture.” On that reasoning, a visually innovative athletic shoe would be eligible for design patent protection, while its visually identical digital counterpart would be ineligible, and the same would be true of a vast array of other valuable digital designs. This Essay examines critically the role of the article of manufacture requirement in contemporary and future design patent law, challenging whether the prevailing approach to that requirement in current Federal Circuit law and PTO practice is suitable for emergent areas of design endeavors such as designs for elements of digital environments, designs rendered for virtual and augmented reality, and designs for holographic projections.