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648 PATENTS: HOPES, FEARS, HISTORY & DOCTRINE
We will close with two final notes about subjects not covered in this casebook.
• Design patents and plant patents: The readings in this book focus on “utility
patents,” but there are also two additional kinds of patents that are subject to
different rules. Design patents can issue to “whoever invents any new, original,
and ornamental design for an article of manufacture.” The invention must be
ornamental rather than functional. Design patents have been granted for
ornamental characteristics of items such as shoes and furniture, and they last for
14 years. §§ 171–173. Plant patents are another category that may be granted to
“whoever invents or discovers and asexually reproduces any distinct and new
variety of plant.” §§ 161–164. (A law outside of the scope of patent law called
the Plant Variety Protection Act covers sexually reproduced plants.)
• Infringement and defenses: A full treatment of patent infringement and defenses
is beyond the scope of this book. The bases of patent infringement are in § 271.
As you read in Sony v. Universal, unlike in copyright law, the patent statute spells
out both direct and contributory infringement. Among the defenses to patent
infringement are prior commercial use, including exhaustion or “first sale” (once