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In this chapter we present a comparative synthesis of recent developments in the jurisprudence of functionality, as it has arisen in US design patent law and Community design law. The law of functionality in both jurisdictions is marked by a number of serious internal tensions–a state of affairs that has persisted for quite some time. Although the respective bodies of functionality doctrine share some common ground, we see little evidence of any emerging consensus about the role that functionality should play in calibrating design protection. 1

Structurally, US design patent functionality differs sharply from its counterpart in the Community Design Regime. In the US, design patent functionality is almost purely a judicial construct, derived entirely from a single term in the patent statute–namely, the requirement that designs be ‘ornamental’in order to warrant consideration for design patent protection. 2 In the Community …