Here come the design patents: new law boosts rights in shapes, designs(gigaom.com)
gigaom.com
Here come the design patents: new law boosts rights in shapes, designs
http://gigaom.com/2012/12/27/here-come-the-design-patents-new-law-boosts-rights-in-shapes-designs/
10 comments
The scariest line is the one that says that if the patent office fails to respond in a fixed time, the patent is automatically granted.
The golden question is how deferential US courts will be to a valid US patent with international precedent. Hopefully not at all because these patents are going to be complete crap.
The golden question is how deferential US courts will be to a valid US patent with international precedent. Hopefully not at all because these patents are going to be complete crap.
The easiest way to do this is with a DDoS on the patent office. If everyone issues a bogus patent request every day, every patent will be granted :).
I find this quite curious, how would it work with clothing? I mean most clothes designs are the work of high end fashion houses, the middle market and lower end then produce very similar styles, its an accepted system. Surely this mean the fashion industry would be subject to the same design patents and thus the middle market could be legitimately sued?
Dseign patents theoretically apply to clothing, but are rare because proving the various elements is somewhat onerous. In any case, they are largely unnecessary. Fashion is almost entirely driven by branding, which is protected by trademark. People buy the brand, not the design. So the JC Penny copy isn't even really in competition with the high-end fashion house design.
Here's a theory: high end design houses have not created their own 'low end self-copycats' because they couldn't block the JC Pennys and Zaras and couldn't compete with their large-scale production, marketing and sales. If law now allows such blocking, then I could see that expansion into low end happening.
"It has come to our attention that the hat you knitted infringes on certain designs patented by our client..."
The first chapter of my economics 101 text mentioned that if everyone had "replicators" that could automatically produce anything one desired, there would be little need for economics at all. I realize now the flaw in that delightful thought.
What in the world does this photo: http://gigaom2.files.wordpress.com/2012/12/shutterstock_9784... have to do with the article?
We don't have to participate in this system. There are alternatives.
What if mathematicians decided to patent all known geometric shapes.
I personally don't see the point of design patents. The whole premise underlying the patent system is to prevent free-riding, but shapes are rarely the product of significant capital investment. If the problem becomes one of confusing similarity, then trade dress is the more appropriate vehicle (incidentally, I think if design patents hadn't existed, Apple would've sued Samsung on trade dress infringement grounds).
There is an internal tension in IP law between the economic justifications for the law and, well, the law. The point is to protect expensive capital investment into design from free-riding, but the law is loathe to actually look at whether a design is the product of expensive investment.