Document Type


Publication Date


Journal Title

American University Law Review




Design patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area—including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the U.S. Court of Appeals for the Federal Circuit, and we update the findings of those studies. Second, we consider a set of institutional questions that, to our knowledge, the prior literature has not even broached. Beyond the federal courts, we explore design patent enforcement at the U.S. International Trade Commission and the use of administrative procedures to challenge design patents in the Patent Trial and Appeal Board. These contributions contextualize the design patent system within the broader debates about U.S. intellectual property policy.

First Page


Last Page


Num Pages


Volume Number


Issue Number



American University (Washington College of Law)

File Type



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.