Design patents have been part of American law since 1842. In that time, only just over 600,000 design patents have been issued, with more than half of these being granted in the last twenty years. This quantity is dramatically fewer than the number of utility patents issued which is rapidly approaching 9,000,000 issued patents. Possibly because of the low usage of design patents over time, no case law and little literature address the constitutional issues raised by them. This article intends to overcome that shortcoming. Two constitutional aspects of design patents will be examined.

First, congressional authority to adopt the design patent laws will be examined. The Constitution in Article I, Section 8, Clause 8 grants Congress specific powers to adopt both patents and copyrights. When a design is examined, it is unclear that it is an invention making its patentability suspect. At the same time, establishing a design as a writing is not problematic, leading to its eligibility for copyright. In this case, the clause itself must be examined to determine if something that qualifies only for copyright protection can nevertheless be granted a patent. The words chosen in the clause, particularly based on the way some of them were used in the Eighteenth Century, suggest that the answer is “no.” Of course, any historical analysis of the Constitution may prove to be an inaccurate predictor of how modern courts would address an issue, but this analysis does suggest a significant Article I problem for design patents.

Second, even if the Article I problem can be overcome, serious First Amendment issues are raised. Unlike a utility patent, design patents are far more likely to have direct impacts on speech. If so, the patent laws would have to accommodate that speech unless there is a compelling governmental need for it to not do so. Copyright law, for example, avoids much of this First Amendment conflict through the recognition of the Fair Use Defense under 17 U.S.C. § 107 which allow society to use copyrighted materials despite the legal protection where important First Amendment issues are raised. Patent law has no such defense, but may need one to avoid constitutional problems.