Design Patents and the Fashion Industry

The chart above shows a histogram of design patent application pendency based on patents issued April-November 2010. The majority of design patents issue within one year of the application filing. When there is a delay in prosecution, it is typically due to informalities in the application submitted. In an earlier study, I found that a very low percentage of design patent applications were ever challenged on novelty or obviousness grounds. For a large entity, a design application and issue fees total to $1,320 (half that for a small-entity).

Fashion Industry: In property law, I teach the case of Cheney Bros. v. Doris Silk Corp. (2nd Cir. 1930). In that 80-year-old case, a silk designer filed suit to stop a free-riding copycat. The appellate court rejected the plea based on the general rule that mere product imitation is not actionable at common law. Rather, a successful plaintiff must have some statutory right to protection – such as a patent or copyright – before copying can be pejorized as counterfeiting. At the time, copyright was not available for fabric designs (it is now) and patents were arguably impractical because of the prosecution cost and invention requirement. For the past eighty-years, the fashion industry has been asking for additional protections. During that time, the potential for copyright and trademark protections have been greatly expanded and enforcement of criminal counterfeiting has increased. However, there are still calls for expanded protection for fashion.

Fashion & Design Patent Rights: Some fashion industry markets have found design patents as valuable. These include eyewear, shoes, handbags, and jewelry. Despite widespread and growing use, fashion industry leaders have continued to push additional forms of protection that are easier to obtain.

The Innovative Design Protection and Piracy Prevention Act (S.3728) was recently passed through the Senate Judiciary Committee. That bill would provide protection for new fashion designs that are unique, distinguishable, non-trivial, and non-utilitarian variation over the prior art. No registration of rights would be required. Rather, protection is automatic for newly publicized clothing, footware, bags, and eyeglass frames. At trial, plaintiff would have the burden of proving rights and infringement. Under the proposed system, rights would persist for three years from the date of publication or first distribution.

66 thoughts on “Design Patents and the Fashion Industry

  1. 65

    This bill seems like an interesting alternative to the design patent/copyright/trademark difficulty. It also looks like another sign that the US patent system is moving incrementally away from the “one-size-its-all” approach and toward the issuance of different types of patents with varying terms and strength of protection. I think it’s progress.

    If you think this bill indicates progress, I wonder what your definition of progress is.

  2. 64

    Yes, since the first design patent was issued in 1842, we have been moving at a geologic frenzy!

  3. 63

    This bill seems like an interesting alternative to the design patent/copyright/trademark difficulty. It also looks like another sign that the US patent system is moving incrementally away from the “one-size-its-all” approach and toward the issuance of different types of patents with varying terms and strength of protection. I think it’s progress.

  4. 61

    This isn’t like the useful arts, where we need a constant stream of innovation to hopefully make our lives objectively better at some point in the future.

    Avoiding a second helping of bell bottoms would have made my life much better. Others too, I’m sure, because I strongly suspect that it caused the recession.

  5. 60

    I think IP regulation exists only because of market failure

    Evidently, Willton don’t do real answers.

  6. 59

    Pretty much any version of “promote”.

    What the heck does that mean?

    Oh, wait, I’m sorry – “homey don’t do answers.” My bad.

  7. 58

    May we then take it as given that most “new” fashions are largely or entirely recycled designs from 20 to 30 years ago?

    No, we can’t. First, you lack evidence to lend credence to your theory. Sure, we can claim that things like bell-bottoms, fedoras and skinny jeans fell back into favor after being unfashionable for a time, but we have no idea what portion of the “new” fashion designs such things comprise.

    Second, I’m sure many fashion designers will disagree with you. Sure, they take bits and pieces from the past, but they will likely claim that most of their work adds new and innovative aspects to what’s already out there. Otherwise they would not be clammoring for sui generis protection.

    This legislation will not put the knock-off industry out of business, because they will still be able to knock off fashions that are recycled from yester year. This legislation will simply provide fashion designers incentive to truly innovate, and investors to assume risk in truly innovative designs.

    “Truly innovate?” What is “true innovation” in the fashion industry? Are you an expert in this field?

    If “true innovation” is making designs we’ve never seen before, then the answer is no, it won’t. The fact that fashion designers are already creating plenty of designs we’ve never seen before (remember, you claimed that Fossil makes close to 400 such designs per week) shows that they already have enough incentive to truly innovate. I see no reason to impose further burdens on the economy. This legislation will merely increase the profit margins of high-end fashion designers, allowing them to keep their revenues high while producing fewer designs per year.

  8. 57

    May we then take it as given that most “new” fashions are largely or entirely recycled designs from 20 to 30 years ago?

    I wouldn’t say “most”, but there’s definitely some. It also depends on what you consider “recycling”. I mean, you don’t go up to the designers at Intel and say “oh, you’re still using transistors after all these years? That’s so 1960s!” Everything builds on the past.

    I also wouldn’t say that it’s necessarily because the old stuff is easier and less expensive. It might well be because that’s what people want to buy, in which case no amount of IP protection will make much difference in changing what designers design.

    This isn’t like the useful arts, where we need a constant stream of innovation to hopefully make our lives objectively better at some point in the future. If everybody decides tomorrow that last year’s clothes are fine for another year or two, or that they want to dress like the ’80s again, nobody’s lives will be objectively worse other than the people who were lining up to sell them the replacements. But we shouldn’t care about their welfare, because they’re the ones wasting their time making art nobody likes. Fashion regress isn’t inherently a bad thing.

    Also, if a single company is churning out 400 new designs a month, and its competitors are presumably doing similarly, they must be doing more than recycling old fashions. Somewhere there are a bunch of people in a room thinking stuff up.

    But if we’re operating from the presumption that fashion designers need protection, the only practical way from a cost and timing standpoint would be either a very efficient and inexpensive registration system or an automatic protection system like copyright, but that lasts at most a year or two.

  9. 55

    Pretty much any version of “promote”.

    Ya be a glass three quarter empty kind of kind, aintcha Willton?

  10. 54

    If ya think regulation exists only for market failure, you failed yourself.

    I think IP regulation exists only because of market failure. Can you think of another justifiable reason?

  11. 53

    then you should indicate where the market is failing.

    Willton,

    Try to think back to your early days of law school (shouldn’t strain ya too much – or maybe ya haven’t got that far yet) and remember why law exists.

    If ya think regulation exists only for market failure, you failed yourself.

  12. 52

    OK, Wilton. For purposes of this rebuttal, I will accept your definition of “promote.”

    May we then take it as given that most “new” fashions are largely or entirely recycled designs from 20 to 30 years ago?

    If so, perhaps it is reasonable to presume that a significant reason for this recycling is because it is easier, less expensive, and less risky to simply recycle the old stuff, knowing that whatever gets used is going to be knocked off and therefore lose its value very quickly. But that’s not progress. That’s regress.

    Therefore, in order to promote the progress of this useful art, Congress enacts legislation to secure to authors for a limited time (3 years in this case) exclusive rights in fashion designs that are unique, distinguishable, non-trivial, and non-utilitarian variations over the prior art.

    This legislation will not put the knock-off industry out of business, because they will still be able to knock off fashions that are recycled from yester year. This legislation will simply provide fashion designers incentive to truly innovate, and investors to assume risk in truly innovative designs. Design patents fail to provide this incentive in fashion because the popularity of innovative designs does not outlast the registration period, and the 14 year term does not extend into the period of time during which the fashion is likely to be recycled.

  13. 51

    Last I checked, policy wanks like you don’t get to define that term either.

    Then who does? You?

    You missed the word “overly”.

    Well then I guess we’ll just have to agree to disagree. In my opinion, advocating for an unregulated market does not strike me as being paternalistic. If you think the market should be regulated, then you should indicate where the market is failing.

  14. 50

    Last I checked, the Constitution did not define the term “promote.”

    Last I checked, policy wanks like you don’t get to define that term either.

    You missed the word “overly”.

  15. 49

    Damm the Constitution, Willton has pronounced new rules for the definition of ‘Promote’.

    Last I checked, the Constitution did not define the term “promote.”

    Talk about an overly paternalistic viewpoint

    Since when was IP law not paternalistic?

  16. 48

    There’s nothing wrong with making new things available to a wider audience, whether we’re talking about fashions, music, or technology. It is, after all, the ultimate goal of the patent system.

    My main man speaks the truth.

    Naturally, such should happen after the patent lapses, but, meh, that be minor details.

    are proper when the unregulated market fails at doing so.

    Damm the Constitution, Willton has pronounced new rules for the definition of ‘Promote’.

    Talk about an overly paternalistic viewpoint…

  17. 47

    By the way, TINLA, when was the last time you threw out your old music, software, or ebooks because they were not fashionable? When was the last time you threw out your old professional clothes because they were not fashionable?

  18. 46

    I mean, seriously. How is it not the same thing as software piracy, music piracy, ebook piracy, etc.? I think you must be in favor of those things too. Go ahead and defend them to us. Show your true colors.

    I am in favor of whatever makes the creators or inventors of new music, software, ebooks, what-have-you want to create or invent more such things. Intellectual property laws and regulations are proper when the unregulated market fails at doing so. There is no such market failure when it comes to the fashion industry. Hence, there’s no need for sui generis fashion design protection legislation.

  19. 45

    There’s nothing wrong with making new things available to a wider audience, whether we’re talking about fashions, music, or technology. It is, after all, the ultimate goal of the patent system.

    The question is how we define the lawful and unlawful ways of doing that, to strike the right balance between the people who develop new things in the first place (who might want them to be expensive and exclusive, at least until they recoup the cost of development) and the public (who tend to always want easy and immediate access to something once developed).

    The right balance will encourage the innovators to keep innovating, while still letting the market be somewhat efficient. Now, where are we to strike a mutually acceptable balance between customers who want the latest fashions as soon as humanly possible (because that’s what fashion is) and designers who want fashions protected for as long as they remain fashionable?

    On the one hand, any company that sustainably develops 400 new products a week doesn’t really need any more incentives to innovate. And how much protection do they really expect, in an art so prolific that they manage to crowd it all by themselves without even a common design theme that might be worthy of a trademark? On the other hand, the general public doesn’t really need all of the latest fashion “innovations” because they’re no more functional than the previous fashions. Making people feel happy and popular, or making some people richer at the expense of others, are not good reasons to enact legislation.

    There’s no tangible public benefit to having the latest fashions be affordable, or even to the latest fashions existing at all, other than it keeps people predictably shuffling money around every season despite last year’s clothes remaining perfectly serviceable. Anything more is a statutory subsidy for the arts.

    So I guess I don’t really care who wins this little fight. We’ll always have clothes to wear, and if anybody ever invents significantly better clothes they can get a utility patent. I’m much more concerned with how we protect the useful technology that actually makes our lives better.

  20. 44

    Wilton: “I was mainly perturbed by what I perceived to be the demonizing of copyists, as if they are doing something really horrible by making the latest computer operating systems and word processing suites affordable for us common folk.”

    ^^^fixt^^^

    I mean, seriously. How is it not the same thing as software piracy, music piracy, ebook piracy, etc.? I think you must be in favor of those things too. Go ahead and defend them to us. Show your true colors.

  21. 43

    Maybe because

    Nah, maybe cause many have a “it-must-be-genius”, elitist view of patents or patent-are-evil view or both.

    Or maybe because design patents are not “real” patents and don’t really promote anything useful. It might be that useful-ornamental dichotomy thing.

  22. 42

    Design patents offer a wonderful scope of protetcion for any consumer and/or industrial product (fashion, machines, wind turbines, etc) where the “look” of the product is an important part of the purchasing decision. I really do not understand why so many people on this blog condem design patents. Maybe because most of the readers here just do biotechnology, electrical or software patents.

  23. 40

    Perry Saidman: “the huge job ahead of re-educating everyone…”

    Indeed.

    That attitude is a bit high-handed Perry, given that you express certitude on the basis of only one CAFC decision and one M.D. Tenn decision.

    I have just completed a quick re-reading of Berry Sterling, and I believe I understand where the panel erred, and the source of Perry Saidman’s misunderstanding.

    I will try to find time to put it into comprehensible words in an upcoming post.

  24. 39

    TINLA IANYL–

    Yes, you are quite correct, Best Lock, not PHG Tech. I was writing too quickly, thank-you.

    Perry knows what I meant–don’t you Perry?

  25. 38

    Wilton, lighten up buddy – i wasn’t conflatin – dincha see the italics?

    I did. Italics usually imply emphasis, not sarcasm. Color me confused if you meant something else.

    Second, all law has somethin to do with morality. Morals is just what religious people call their special law – but make no mistake, they be all abouts the same thing.

    Fair enough. I was mainly perturbed by what I perceived to be the demonizing of copyists, as if they are doing something really horrible by making normally high-end fashion affordable for us common folk.

    Lastly, what aint broken to some is way beyond broken to others. And that goes for the fixins too.

    Understood, but if such others think something is broken, then they should be able to identify what is broken and why it’s a problem. I’m still waiting to hear why the lack of copyright-like protection for fashion designs is such a problem. Thus far, all the reasons put forth strike me as reasons to maintain the status quo. As IANAE likes to say, that’s not a bug; it’s a feature.

  26. 37

    Wilton, lighten up buddy – i wasn’t conflatin – dincha see the italics?

    Second, all law has somethin to do with morality. Morals is just what religious people call their special law – but make no mistake, they be all abouts the same thing.

    Lastly, what aint broken to some is way beyond broken to others. And that goes for the fixins too.

  27. 36

    First, copying is not stealing; it’s copying. The two are not the same, so don’t conflate the two as a way to bolster your argument.

    Now that’s a fine example of pejoritization. There was a time when imitation was considered the sincerest form of flattery.

  28. 35

    Ping,

    First, copying is not stealing; it’s copying. The two are not the same, so don’t conflate the two as a way to bolster your argument.

    Second, intellectual property law, and in particular patent law, has nothing to do with morality and everything to do with providing economic incentives for beneficial activity. Stop acting like copying the designs of fashionistas is some morally reprehensible thing.

    If the beneficial activity in question is occurring not only in spite of, but in fact because of the lack of directly applicable intellectual property law, then what’s the reason for injecting such law into the system? As the saying goes, don’t fix what isn’t broken.

  29. 34

    We should bless stealing of all intellectual property.

    That way, if someone wants to set themselves apart, they will have to keep on creating.

    Damm – a brilliant idea, let’s patent the idea in all its abstract beauty.

  30. 33

    There are also many American companies that design and make their own apparel and accessories, such as Fossil, Inc. Not long ago, I heard an attorney at Fossil comment that they can’t possibly file design patents on very many of their designs because they release a staggering number of new designs every week (~400 iirc).

    This strikes me as a reason why we DON’T need sui generis fashion design protection. If companies like Fossil are already pumping out close to 400 new designs every week, then they clearly do not need more incentives to create new designs.

  31. 32

    A design patent system does not address the needs of innovative companies like Fossil, Inc. When it comes to the fashion industry, design patents are too expensive and too slow to do the job for which they were intended. That’s why another mechanism is proposed specifically for that industry.

    Okay, but why should we give the fashion industry (or, more particularly, high-end fashion designers) what they want? There’s no shortage of new and innovative fashion designs, despite the fact that many of them are copied by knock-off companies and sold at a lower prices. Furthermore, companies like Fossil and the aforementioned American designers are apparently encouraged to create more new and innovative designs because of the presence of many knock-offs, as discussed and analyzed by professors Kal Raustiala and Christopher Sprigman on more than one occasion. So what societal harm is the proposed sui generis protection system supposed to address?

    The only thing that the proposed legislation will do is line the pockets of high-end designers while introducing a whole new wave of lawsuits to an already taxed federal court system. I see no societal benefit that this legislation presents.

  32. 31

    Huh. The top ten American fashion designers are all American. That’s pretty telling.

    Where are the top ten American knocker-offers from? I bet they’re not from around here.

    A design patent system does not address the needs of innovative companies like Fossil, Inc.

    That’s clearly true.

    So what kind of protection do they really need? Presumably the copiers are cashing in on the demand for inexpensive designer look-alikes. It seems like common-law trademarks are the closest thing to that sort of protection. I wouldn’t mind adding a presumption of distinctiveness if you can show that someone copied an original designer article to pass off the copy as a look-alike of the original, so that the designers don’t have to show that their brand new fall handbag has been a huge market success for the past five years or whatever. Call it a sort of estoppel – you can’t cash in on someone’s reputation and then argue they don’t have one.

  33. 30

    Top Ten American Fashion Designers:

    Marc Jacobs
    Vera Wang
    Oscar de la Renta
    Calvin Klein
    Kate Spade
    Ralph Lauren
    Anna Sui
    Donna Karan
    Todd Oldham
    Bill Blass

    There are also many American companies that design and make their own apparel and accessories, such as Fossil, Inc. Not long ago, I heard an attorney at Fossil comment that they can’t possibly file design patents on very many of their designs because they release a staggering number of new designs every week (~400 iirc).

    A design patent system does not address the needs of innovative companies like Fossil, Inc. When it comes to the fashion industry, design patents are too expensive and too slow to do the job for which they were intended. That’s why another mechanism is proposed specifically for that industry.

  34. 29

    There is a new reverse image search engine called Gazopa.com. Put in an image and it searches the web for similar images. I dropped in the skirt drawing above and came up with these results. link to bit.ly

    Is this the dawn of fully automated patent examination and infringement detection? Will the registration/examination debate become moot?

  35. 28

    I was wondering how your internet connection is from over there in China.

    Funny guy. How’s yours over in France?

  36. 27

    So it’s better for the knockoff artists to funnel money out of America

    … than for the designers to funnel money out of America?

    Plenty of the designers are from overseas, and I’m sure some of the domestic ones source their materials overseas and use genuine third-world child labor. Why would you assume that designers are inherently more likely to keep their money in the country where they collect it? Out of a sense of gratitude for the country that so generously gave them sui generis IP rights?

    Seems like you are arguing for a higher trade deficit and against job creation, Mr. Economics.

    I’m not arguing for it, but the economy has been arguing for it for a long time. It doesn’t matter who designed what. Nobody wants to buy American if they can get a dozen pairs of Chinese tube socks for a buck ninety-nine.

    What good is it for the economy to supply something at a price nobody can afford? I can at least see some benefit to society if the useful arts are involved, but we’re talking about pretty dresses and handbags here. They’re no better than last year’s pretty dresses and handbags.

    Intellectual property policy will never keep jobs, money, or innovation in America, because foreign innovators get the same protections under the law and even Americans with patents outsource whatever it makes economic sense to outsource.

  37. 26

    “If the designers are primarily making an economic argument, we should be looking at the economics of the situation. What’s more important for the economy – designing a bunch of new clothing when last year’s clothing still covers up your naughty bits just fine, or selling a bunch of clothing people can afford?”

    So it’s better for the knockoff artists to funnel money out of America than for them to hire their own designers to make new fashions that people can afford? Seems like you are arguing for a higher trade deficit and against job creation, Mr. Economics.

    Anyone who thinks that there are good guys and bad guys when it comes to clothing design in the fashion industry clearly has a very simplistic view of the world.

    I was wondering how your internet connection is from over there in China.

  38. 25

    Anyone who can’t see that the knockoff artists are the bad guys needs new glasses.

    Anyone who thinks that there are good guys and bad guys when it comes to clothing design in the fashion industry clearly has a very simplistic view of the world.

  39. 24

    Anyone who can’t see that the knockoff artists are the bad guys needs new glasses.

    They have lots of customers who can’t afford the expensive designer originals and who see them as good guys.

    They generate significant economic activity by those customers who would never have bought the designer originals, which makes them good guys for the economy.

    It’s a question of perspective, really, and of what result you consider desirable. If the designers are primarily making an economic argument, we should be looking at the economics of the situation. What’s more important for the economy – designing a bunch of new clothing when last year’s clothing still covers up your naughty bits just fine, or selling a bunch of clothing people can afford?

    The mosquitoes didn’t think they were the bad guys either. They just needed to eat.

  40. 23

    IANAE: “From a certain perspective, there’s no such thing as too few mosquitoes. The good guy/bad guy line isn’t as clearly drawn in the fashion industry, and as everybody appears to be making money it bears explaining why any new legislation is needed at all.”

    WILTON: “Exactly. So what’s the problem?”

    Anyone who can’t see that the knockoff artists are the bad guys needs new glasses.

  41. 22

    IBP,

    That’s an interesting discussion you pointed out, and it seems you misremember Judge Newman’s dissent as being in the PHG Tech case, when it was actually in the Best Lock case, where a key shape was not allowed to be design patented because it was the only shape that would work with a certain lock that had a key pathway adapted to receive that shape and only that shape.

    I recall from cases relating to design patents of tire treads the rule that a design, though functional, can still be design patented so long as it is not the optimal design or the only design for achieving that function. That rule is relevant, I think, in the case of the key shape, because it was the only design that would operate with a particular lock.

    However, I don’t know if the key shape made it unsuitable for use with any other type of lock. Does anyone have that information and choose to share it? I think that information might help illuminate whether the key’s function was to operate only that type of lock, or if it was able to operate many types of locks. Answering that question might shed some light on whether it is appropriate to consider the key shape the only shape able to achieve that key’s function.

  42. 20

    Thanks for that incisive comment, Perry.

    Now what about Newman’s PHG Tech’s dissent?

  43. 19

    PEJORIZED — a word unknown to me. My google machine fails to disclose a definition. Can anyone help me out?

    Pejorization actually means something to linguists, but I don’t think Dennis is using it correctly. I think Dennis is intending it to mean “referred to pejoratively.” However, “pejorization” refers to a process in which a neutral word takes on a pejorative meaning.

  44. 18

    Dennis, as you have pointed out in the past, due to the dearth of substantive prior art rejections, today the design patent system is a (very expensive) de facto registration system. So, to have automatic rights in fashion designs upon first publication is a logical step forward, in terms of speed and cost, and will hopefully pave the way towards similar unregistered design protection for all industrial designs, similar to the way they now do it in Europe.

  45. 16

    Nice “thoughts” Willton, and thanks for stating the “obvious“, but Iza not sure that “thought” angle on what he be preservin with the patent isa goin ta be held with his trademark. At the risk of soundin banal (like the rest of youse guys) the trademark will protect what the trademark protects and the patent protects – for that limited times only – what the patent protects. Sure, just like software that can be patented and trademarked, there be overlap. No one be arguing otherwise, far as I can tell.

  46. 15

    Thought,

    “Can you get a design trademark ALONG WITH the design patent so that it will last forevermore?”

    For the fashion industry? I believe trademark protection for clothing designs is not practically possible, unless and until case law is overturned. I am not as up on my TM law, so someone please correct me if I am wrong, but I believe it has not changed drastically since the Supreme Court decided the Wal-Mart (Samara?) case earlier this century.

  47. 14

    Ping, it’s very easy. As a general matter, trademarks essentially take something out of the public domain (say, a word or series of words) and uses it in connection with a product or a service. That does not mean that I can’t use the word in my regular speech or writing; I just can’t use it in connection with hawking goods or services of a related nature.

    For instance, let’s say you had a trademark registration for the mark “PING” in connection with legal services. I can still use the word “ping” when describing the sound I hear when a pin drops or the action a computer takes when determining the speed of an internet connection. Your registration also would not interfere with Karsten Manufacturing Corporation’s use of the PING mark in connection with golf clubs. However, I might run into trouble if I started using the PING mark in connection with, say, computer software for creating patent drawings.

    The same can be done with product design and trade dress. So long as a particular design is not functional (which would render it improper for design patent protection anyway), the fact that such design is the subject of a design patent does not mean that it cannot be used to denote the source of a particular good or service. Once the design becomes public domain, I can make the object myself and not infringe anyone because I’m not using it to denote the source of goods or services. However, if I were to sell the item I made on the marketplace, I might run into some trouble.

  48. 13

    Here’s a question I never could wrap my head around
    What is the difference between a copyright and a design patent from a: a) infringement standpoint (i.e. differences in the elements for a copyright infringement suit vs. design infringement suit) and b) a scope of protection standpoint?

  49. 12

    That’s a nice thought. No one is arguin that they not be separate things.

    Iza still curious how ya plan on gettin around the dedicatin to the public part O the patent grant.

  50. 11

    MPEP 1512 Relationship Between Design Patent, Copyright, and Trademark

    III. DESIGN PATENT/TRADEMARK OVERLAP

    A design patent and a trademark may be obtained on the same subject matter. The CCPA, in In re Mogen David Wine Corp., 328 F.2d 925, 140 USPQ 575 (CCPA 1964), later reaffirmed by the same court at 372 F.2d *>539<, 152 USPQ 593 (CCPA 1967), held that the underlying purpose and essence of patent rights are separate and distinct from those pertaining to trademarks, and that no right accruing from one is dependent or conditioned by the right concomitant to the other.

  51. 10

    Bein as the patent grant includes a dedication to everyone (the public) at the end of the patent term, I don’t observe how ya might pull that one off, thought.

  52. 7

    There be no problem her attall, as design patents are not real patents, are they? (my main man can set ya straight on this)

  53. 6

    The fashion knockoff industry has also done just fine for the past 80 years despite design patent protection of fashion designs.

    Exactly. So what’s the problem?

  54. 5

    Anticipating the probable re-emergence of the self-appointed oracle of design patent law, I direct Perry Saidman’s attention to an issue raised in this year-old patently-o design patent thread:

    link to patentlyo.com

    Perry promised to address the issue, but failed to do so. When I tried to draw him out of the weeds 2 months later, he used a confidentiality obligation as the reason for his silence “at that time”.

    Well Perry, it has been a while. Is that confidentiality obligation still holding you back, or can you explain to us your preference for the view expressed by Newman in her dissent in the PHG Tech’s case?

    Surely it is within your professional ability to craft a narrowly-tailored response that addresses the specific issue in the decision, in order to preserve client confidentiality…

  55. 4

    The ability of humans to survive and even thrive without mosquito repellant doesn’t necessarily make mosquito repellant a bad idea.

    It’s a bad idea for the mosquitoes, even though they continue to thrive as well.

    All the mosquito repellent does is make life a bit easier for the party on one side of that particular dispute. That’s an easy decision, because that one side is solely in charge of the decision to develop that particular product. It’s trickier in the fashion industry, where there are people on both sides who can vote to elect legislators and who actively contribute to the economy and standard of living that such laws are supposed to ultimately promote.

    From a certain perspective, there’s no such thing as too few mosquitoes. The good guy/bad guy line isn’t as clearly drawn in the fashion industry, and as everybody appears to be making money it bears explaining why any new legislation is needed at all.

  56. 3

    The fashion knockoff industry has also done just fine for the past 80 years despite design patent protection of fashion designs.

    The ability of humans to survive and even thrive without mosquito repellant doesn’t necessarily make mosquito repellant a bad idea.

  57. 2

    The fashion industry has done just fine for the past 80 years without sui generis protection of fashion designs. I see no reason why they should get it now.

  58. 1

    Having a design patent on your newly-designed container is a great way to get a patent number to slap on an old and uninteresting product for which your utility patent application was rejected numerous times over. Who really looks these things up anyway?

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