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MENELL & CORRENT - DESIGN PATENT IDENTITY CRISIS - BTLJ EDIT - PSM 12-30 12/30/2020 7:58 AM DESIGN PATENT LAW’S IDENTITY CRISIS Peter S. Menell † & Ella Corren†† ABSTRACT Since its emergence during the industrial revolution nearly two centuries ago, U.S. design patent law has suffered from a profound identity crisis. U.S. copyright law did not yet extend to the shape or ornamentation of three-dimensional works. The drafters of the first U.S. design protection regime modeled the law on the British copyright regime for surface ornamentation and sculptural features of three-dimensional articles but confusingly labeled the regime “design patent.” Courts and the Patent Office struggled to interpret protection for “useful” designs against the backdrop of a utility patent regime focused on technological inventions. Further complicating design patent’s role, manufacturers used design patents as a nascent form of trademark protection until federal trademark protection emerged. And in 1870, Cong...