Design patents protect the way a product looks whereas utility patents protect the way a product is used. The law suggests a great disparity between the artistic creation relevant to design patents and the scientific creation relevant to utility patents. The design process is believed to be so personal and subjective that judges refuse to consider any part of a design more important than another. This stands in sharp contrast to the law’s assumptions about scientific invention, which permits objective and focused evaluation of the invention and its prior art. This art/science double standard does not jibe with evidence that the same neural phenomena are at work in all kinds of creative tasks. For scientists as well as designers, both sides of the brain must be engaged in the same process: coming up with an idea, then building on that idea so that it is useful. To earn design patent protection, a claimed design must be “nonobvious” to “the ordinary designer.” To the extent judges refuse to rigorously compare claimed designs against earlier works to determine nonobviousness, they are straying from the way designers actually generate innovative design.

A building body of evidence reveals that the Patent and Trademark Office (PTO) is granting a significant number of invalid patents that create inefficiencies and chill innovation. At least part of the blame can be placed on the design of the patent system, which places most of the costs associated with understanding the nature and novelty of a claim on the government patent examiner, rather than on the inventor. After considering how a range of inventors might react to this incentive system, we consider reforms that place stronger incentives on the inventor to justify a patent award.

Consumer protection law is notoriously imbalanced with respect to the superior ability of sellers to process information as compared to their customers. Yet despite the resulting comprehension asymmetries, the design of consumer contract law and disclosure requirements regularly fail to encourage sellers to communicate meaningfully with the target audience. This chapter explores how consumer protection law tacitly encourages incomprehensibility and proposes reforms which would provide increased incentives for meaningful communication between buyers and sellers.