Lessons From A Number 2 Pencil

Aspiring patent attorneys often are introduced to the art of claim drafting for utility patents by reference to a number 2 pencil. The pencil is a simple item of manufacture with four parts: the writing tip; the hexagonal body; the ferrule (metal piece that attaches the eraser); and the eraser. This simple and familiar construction makes the pencil an ideal model for learning to draft claims for utility patents, that is, patents for functional items of manufacture.

As it turns out, reference to the simple number 2 pencil can help shed light on other forms of intellectual property: those that protect nonfunctional designs. A recent federal circuit case considered the modest number 2 pencil in the context of design patents and copyrights. A close look at the holding of the court and the detailed decision of the district court helps to explain the nonfunctional requirement for design patents and copyrights, and the differences between these two types of