INTRODUCTION: THE UNEXPECTED PATENT BAR REVOLUTION – 1292

I. DEFINING DESIGN PATENTS (VERSUS TRADE DRESS AND COPYRIGHT) – 1293
A. What Design Patents Protect – 1293
B. Why We Need Design Patent Protection – 1294
C. How Did Design Patents Develop? The Path to Current Law – 1295
D. Design Patents versus Copyright: Overlapping Protection for
Visual Creativity – 1296
E. Design Patents versus Trade Dress: The Trademark Overlap – 1297
F. Can You Have All Three? The Cumulation Problem – 1298

II. THE PATH TO EXPANSION: GROWING INTEREST IN DESIGN PATENTS – 1299
A. Empirical Evidence of Growth and Importance – 1299
B. Scholarly Attention and Policy Debates – 1300
C. International Developments and Competitive Pressures – 1301

III. DECODING CATEGORY D: WHAT THE USPTO ACTUALLY DID – 1302
A. The Regulatory Framework: A Three-Stage Rulemaking Process -1302
1. Request for Comments (October 18, 2022) – 1302
2. Notice of Proposed Rulemaking (May 16, 2023) 1303
3. Final Rule and Implementation (November 16, 2023) – 1304
B. Director Vidal’s Stated Rationale and USPTO Justifications – 1304
C. Industry Adaptation and Market Response – 1306

IV. HOW DESIGN PATENTS STEPPED ON COPYRIGHT TERRITORY – 1307
A. Federal Circuit’s Systematic Expansion of Design Patent Scope – 1307
B. GUI Design Patents’ Explosive Growth: From Copyright to Patent Territory – 1308
C. Fashion and Typography’s Patent Turn – 1309
D. The Constitutional Stakes: When Art Teachers Prosecute Patents – 1310

IMPLICATIONS AND CONCLUSION – 1311
A. What Art Teachers Should Know: Investment Analysis
and Market Opportunities – 1311
B. Strategic Opportunities and Competitive Pressures for
Copyright Practitioners – 1312
C. Policy and Reform Implications – 1313
D. Copyright’s Response to Patent’s Artistic Turn – 1314

The USPTO’s January 2024 implementation of Category D design patent practitioner registration marks a watershed moment in intellectual property law. For the first time, art teachers and creative professionals can practice patent law without traditional STEM credentials, but only in a specific area: design patents. Design patents increasingly protect subject matter traditionally governed by copyright and trade dress. This short article looks into the Federal Circuit’s systematic expansion of design patent scope, combined with the USPTO’s recruitment of art-trained practitioners, and suggests this signals a potential fundamental restructuring of intellectual property boundaries. Copyright practitioners can no longer treat design patents as a specialized technical field irrelevant to their practice.