Insights

The Federal Circuit’s decision in University of South Florida Board of Trustees v. United States, 22-2248 (Fed. Cir. Feb. 9, 2024) hints at the broad scope of the federal government’s license rights under the Bayh-Dole Act. 

Design patents in the United States date all the way back to 1842, nearly 52 years after the first utility patent laws were passed in the Patent Act of 1790. The first U.S. design patent issued to George Bruce in 1842 and claimed a new printing typeface. Interestingly, the design patent was utterly devoid of art or images and featured only a written description of Mr. Bruce’s new typeface (for “Letters with Points, called in the printed impressions, New Double Small Pica Script, Two-line Long Primer Ornamented No. 3, Two-line Nonpareil Ornamented, and Long Primer Ornamented”). Even though this was 55 years before the first cathode ray tube display was publicly presented, and more than a century before the earliest LCD and LED technologies of modern display screens, it has served as a precedent that typefaces and other graphic displays are proper design patent subject matter. Design patents have enjoyed increasing popularity, jumping from only 12 other design patents issued in 1842 to about 15,000 design applications filed in 1995, and to a whopping 47,500 design filings in 2019. Not surprisingly, the steady rise in the number of design patent applications reflects meteoric advances in technology. And as noted by Director Vidal, because design patents have been shown to provide a “catalyst for growth” and a “competitive edge” for U.S. manufacturers, maintaining clear and current guidelines is crucial.

The U.S. Patent and Trademark Office (USPTO) recently issued the one millionth U.S. Design Patent on September 26, 2023. U.S. Design Patent 1,000,000 is directed toward the ornamental design of a dispensing comb and was issued to Agustina Huckaby, an inventor and licensed cosmetologist from Fort Worth, Texas. This significant milestone, 181 years after the first design patent was issued in 1841, comes during a time of increased interest in design patents. The USPTO reports that in 2022, more than 50,000 design patent applications were filed, and that the USPTO has seen an 20% increase in design applications over the past five years.