
Here come the design patents: new law boosts rights in shapes, designs - chaostheory
http://gigaom.com/2012/12/27/here-come-the-design-patents-new-law-boosts-rights-in-shapes-designs/
======
rayiner
"Design patents" are more sensibly understood as being part of the trademark
regime than the patent regime. They protect entirely arbitrary and non-
functional aspects of a product. If the shape has any utility, then the design
patent is invalid.

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.

------
btilly
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.

~~~
miahi
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 :).

------
DennisP
Why is it that whenever they use the word "harmonize" it means we're going in
a more restrictive direction instead of less?

~~~
Tuvaloon
Restrictive in what respect?

------
Vivtek
Why is harmonization so important for patents and utterly laughable for health
care?

~~~
pixl97
Follow the money and the established players and you'll see why.

------
justin_hancock
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?

~~~
rayiner
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.

~~~
Jare
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.

------
nathan_long
"It has come to our attention that the hat you knitted infringes on certain
designs patented by our client..."

------
transfire
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.

------
jcoder
What in the world does this photo:
[http://gigaom2.files.wordpress.com/2012/12/shutterstock_9784...](http://gigaom2.files.wordpress.com/2012/12/shutterstock_97841513.jpg?w=300&h=210)
have to do with the article?

------
jaekwon
We don't have to participate in this system. There are alternatives.

------
dev1n
What if mathematicians decided to patent all known geometric shapes.

