WHY THE FUTURE OF DESIGN PATENT PROTECTIONS WILL RELY ON MODERN NEUROSCIENCE, NOT CONSTITUTIONAL AND LEGAL REVERSIONISM

Mauro and Morley discuss why the future of design patent protections will rely on modern neuroscience, not constitutional and legal reversionism. The ability to protect design rights grows increasingly unreliable for design patent owners. Litigation to protect highly valued design assets in an increasingly competitive marketplace has become costly, time-consuming, and unpredictable. The problems with design patent law are not best characterized as a muddle, but one of decisional inconsistency. The next evolution in design patent decision-making will not yield to a recasting of outdated legal tests scraped from other IP systems, such as copyright or trade dress. Support for this view is found in the fields of neuroaesthetics and shape perception science. Such fields have made possible development of new science-based consumer testing methods focused on understanding how consumers (ordinary observers) perform in the established ordinary observer test (OOT) framework. It turns out that modern neuroscience can and will help the finders of fact understand the complexity and biases inherent in shape perception and ornamental design assessments related to matters of infringement.