10.06.17
Design Patents Should Not Exist, Trademarks and Copyrights Already Cover Designs
Zach Snyder is listed as an “Inventor” of this:
Summary: The absurdity of broad patents on design ideas which are about as ludicrous as patents on paintings or sketch arts
WE have, for a long time, said that patents on designs should not exist. Trademark law already covers designs, sometimes copyright law covers these too.
This new book title irked us a little. Patently-O promoted it yesterday. The book’s name, “Design Rights”, is misleading. These are not “rights” per se. We often see words like assets, property, rights, protection etc. misused. Patently-O misuses these words too.
“The book walks through design protection available the various global regions,” Patently-O wrote, “US, Europe, Japan, China, India, S.America, etc – and is designed to help practitioners both understand the law and get started on strategy.”
It talks about “practitioners”, i.e. those who make a living not from designs but from telling designers that they need patents.
Design patents too often (more often than not) look like satirical ones. Patently-O gave this example the other day and even Crouch made fun/poked at it. To quote: [via]
Don’t stare too deeply into the pattern above – it embodies Columbia Sportswear’s U.S. Design Patent No. D657093 – covering “the ornamental design of a heat reflective material, as shown and described.” The recent $3 million jury verdict in Columbia Sportsware v. Seirus Innovative Accessories appears to be the first post-Samsung verdict on design patent damages.
Look at it. Ridiculous! How can that be monopolised? It’s almost outrageous.
The Samsung verdict Crouch alludes to is the Apple case, which revolves around a ridiculous design patent dispute. There’s an update on the case in this post from Florian Müller:
Just this week, the Wall Street Journal reported on the high-volume business Apple is doing with Samsung, a key supplier of components for various products including the new flagship iPhone, the iPhone X, on which Samsung will reportedly make $110 per unit. But as device makers, the two remain fierce competitors–and adversaries in court.
And on the design patents:
In the famous design patents case, the DoJ agreed with Samsung on the key legal question (article of manufacture). It additionally brought up a procedural question that could have enabled Apple to defend the original damages award. Now, with respect to the more recent petition relating to invalidity, injunctive relief, and infringement, the DoJ cautiously distances itself from the en banc opinion and indicates only between the lines that it may disagree, to some extent, from a policy perspective (“rigid rules for demonstrating obviousness” etc.). It would have been nice if the DoJ had been clearer about the implications of this for U.S. tech companies and for the work of the United States Patent and Trademark Office, which is supposed to protect real technological progress, which is hard to do if even weak evidence of non-obviousness gets a lot of weight. The DoJ could have expressed more clearly a concern over what this means for patent quality, but unfortunately it didn’t.
Those who have actually seen some design patents (not registered designs) will know that it’s a bubble of bad patents. Patently-O recently showed the explosive growth of such patents at the USPTO.
What next for patent maximalists? The crooked EPO has already begun granting patents on life itself, rendering EPs a laughing stock. █
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