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| Authored by: Anonymous on Tuesday, January 15 2013 @ 09:57 AM EST |
PJ,
As you know, design patents have very little to do with
"invention" (unlike, say, utility patents) as opposed to
novelty. As you are trying to explain the law to a techie
audience, shouldn't you then explain the legal differences
between design patents and utility patents? Since you posit
that *these* design patents are excessive, it would help to
understand why you feel that these design patents are
excessive. It would also help the readership to explain the
difference in design patents (the curious result that design
patents on the phones were upheld, but not on the tablets,
for example). I am sure that both of us know that you can't
get a design patent on "rounded rectangles". This claim is
similar to saying that Absolut couldn't get a design patent
on "rounded curves". Going back in time (and using the
bottle example, again), one could make your argument that
one of the most famous design patents (the coca cola bottle)
should never have been granted because, hey, how many ways
can you make that bottle?
Moreover, since the concern of your audience tends to be
focused on utility patents (or "software patents"), the
conflation of the two into overall "patents are bad" doesn't
help. In order to effectively communicate the problems with
the law, you need to effectively communicate the
distinctions in the law. You have very strong normative
opinions, which is awesome, but it's important to get these
distinctions parsed out to your readership correctly.
I've seen this in other examples- a love of Posner's opinion
(because of the result against Apple) while discarding the
substantive reasoning regarding SEPs and hold-up value.
There are a number of interrelated IP questions being fought
in a number of forums with a great number of players,
involving a multitude of causes of action with different
standards. It's extremely important to assess all of these
for your audience at two levels-
1. Break out the descriptive from the normative. (What the
law is, and what you think the law should be).
2. Identify the distinctions. Yes, you might understand
trade dress, and design patents, and utility patents. But
have you explained them?[ Reply to This | Parent | # ]
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