Virtual Designs

Industrial design is migrating to the virtual world, and the design patent system is migrating with it. The U.S. Patent and Trademark Office (USPTO) has already granted several thousand design patents on virtual designs, patents that cover the designs of graphical user interfaces for smartphones, tablets, and other products, as well as the designs of icons or other artifacts of various virtual environments. Many more such design patent applications are pending; in fact, over the past year, more U.S. design patent applications have been filed for virtual designs than for nearly any other type of design subject matter. Our project is the first comprehensive analysis of design patent protection for virtual designs. We first take up the question of virtual designs as design patent-eligible subject matter, a question that has not yet been tested in the courts. We show that longstanding principles of design patent jurisprudence supply an answer to the question, with surprisingly little need for adaptation. We then present the results of an empirical study analyzing all issued U.S. design patents on virtual designs and their prosecution histories. Here we show how utility patent metrics for quality and value can be extended to design patents. Using these metrics, we show that design patents on virtual designs fare at least as well in quality and value as do design patents on other types of designs. In fact, design patents on virtual designs fare better in some respects. And, finally, we conclude by identifying issues that are likely to arise in anticipated future litigation over patents on virtual designs