New paper: The Eye Alone Is the Judge: Images and Design Patents

Read it on SSRN.  Abstract:

Design patents are an area of intellectual property law focused entirely on the visual, unlike copyright, patent, trademark, trade secret, or the various sui generis protections that have occasionally been enacted for specific types of innovation. Judges and lawyers in general are highly uncomfortable with images, yet design patents force direct legal engagement with images. This short piece offers an outsider’s view of what design patent law has to say about the use of images as legal tools, why tests for design patent infringement are likely to stay unsatisfactory, and what lessons other fields of intellectual property, specifically copyright, might take from design patent.

19 J. Intell. Prop. L., pp. 409-426, 2012.  (Working on correcting the cite now.)