Adopt a Design Patent: 1842-1925

This collection of 50 NFTs is based on 50 United States design patents granted between 1842 and 1925. Each NFT in this collection is of a different design patent and consists of an image derived from that design patent.

The purpose of this collection is to encourage the adoption of abandoned and forgotten designs, and their reuse for new and different purposes. Obviously, the images associated with the NFTs in this collection could be used as profile pictures. But there are other potential uses as well. After all, they were created as ornamental designs for commercial products. They could still be used as ornamental designs or as trademarks, among other things. Their potential is yours to explore.

All of the materials in this collection are in the public domain, so there are no legal restrictions of any kind on the use of the design patents or the images they include. Accordingly, the owner of an NFT from this collection may use the image associated with the NFT for any purpose, including commercially.

What is a design patent?

A design patent is a kind of patent that creates an exclusive right to use a new, original, and ornamental design for an article of manufacture for a limited period of time. Essentially, design patents protect the way a product looks, rather than the way it works. A design patent includes one or more images, usually monochrome line drawings, and claims the exclusive right to use the design depicted in those drawings.

Congress created design patents in 1842. Since then, the United States has granted almost 1 million design patents. The Patent Office grants design patent applications only if they claim new, original, and ornamental designs. In other words, the design must be more than trivially different from previous designs, and it cannot be the only functional design for the product. Once granted, design patents last for 15 years.

Why are the materials in this collection in the public domain?

All of the design patents in this collection expired a long time ago, so the designs are in the public domain. However, the elements of a design patent can also be protected by other forms of intellectual property. Specifically, the images in a design patent can be protected by copyright and the designs as applied can be protected by trade dress.

These drawings were probably never protected by copyright, because they were published in a design patent without a copyright notice. But even if they were protected by copyright, the longest possible copyright term has expired, and they are in the public domain.

Unlike design patents and copyrights, trade dress protection doesn’t have a fixed term, and lasts as long as a distinctive trade dress is used in commerce. As far as I know, none of the designs in this collection are currently in production, and some may never have been produced. In any case, trade dress protects the appearance of a product, not the appearance of a drawing of the design of a product, and only prohibits the production of confusingly similar products.

Why does any of this matter?

One of the many open questions posed by NFTs is the relationship between an NFT and whatever it represents. Most NFTs are related to digital works of one kind or another: images, sound recordings, literary works, and so on. However, it’s often unclear what rights, if any, the owner of an NFT has in the work it represents. Sometimes, the owner of a work uses an NFT to explicitly convey certain rights in that work. But other times, the owner of work doesn’t specify what rights, if any, the NFT conveys. And occasionally, people sell NFTs of works they don’t own.

This collection is intended to reflect on the nature of the ownership interest conveyed by an NFT. Strictly speaking, everything associated with these NFTs is in the public domain, and can be used by anyone, anytime, in any way. They once became property, but have returned to the commons. They once were rare, because we chose to limit their use to the person who claimed them, but their rarity was evanescent and has long since melted into air.

And yet, in a sense, they remain rare. Only a tiny fraction of designs are protected by design patents, and design patents were unusual until quite recently. What’s more, these designs were long forgotten, languishing in the records of the Patent Office, until I resurrected them for this collection. What is more rare than an object of value, lost and reclaimed?

This collection of NFTs offers the opportunity to claim ownership of these strange and historical designs, while still leaving as much and as good for others to enjoy. How will you use them? That’s up to you.