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Design and Deviance: Patent as Symbol, Rhetoric as Metric, Part 1

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Title: Design and Deviance: Patent as Symbol, Rhetoric as Metric, Part 1
Authors: Colman, Charles E.
Keywords: design
intellectual property
legal history
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Issue Date: 2015
Publisher: Jurimetrics
Citation: Colman, C. (2015). Design and Deviance: Patent as Symbol, Rhetoric as Metric-Part 1, 55 Jurimetrics J. 419-462.
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Abstract: This project reveals the unrecognized power of gender and sexuality norms in the deep discourse of pivotal American case law on design patents. In Part 1, I show that late nineteenth-century cultural developments in the urban Northeast gave rise to a stigma surrounding the "ornamental" and "decorative" works under the then exclusive legal purview of design-patent protection. Among the politically dominant segments of American society, the creation, appreciation, and consumption of design "for its own sake" grew increasingly intertwined with notions of frivolity, effeminacy, and sexual "deviance." In Part 2, I will examine influential design-patent decisions from the 1870s through the 1930s against this cultural backdrop. My close reading of these decisions will demonstrate that federal judges, particularly in leading cases decided by the Second Circuit, increasingly used design-patent disputes as a vehicle for the performance and endorsement of prevailing gender norms. The resulting doctrine relegated design patents to near-total irrelevance as a viable form of intellectual property protection for a large and crucial portion of the twentieth century.
Pages/Duration: 44 pages
Appears in Collections:Colman, Charles E.

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