Current design patent laws stifle innovation and competition, R Street study finds
WASHINGTON (June 20, 2014) – Current design patent law provides incentive for frivolous lawsuits and abuse, said the R Street Institute in a policy paper released today.
Authored by Ned Andrews, the paper, “Is interactive design becoming unpatentable?,” lays out recommendations for modernizing the design patent system to allow smaller companies to enter the technological market.
“In order to have the kind of ornamental status that could be the subject of a design patent, an object must possess either some entirely nonfunctional feature or be the result of workmanship that does not contribute in any way to its function,” wrote Andrews. “Current definitions falsely equate the aesthetic merit of functionality with that of applied ornamentation. Thus, some inventors seek design protection for aspects of an object that are, in fact, functional.”
Andrews writes that the system creates an incentive for companies to acquire the patent rights for designs that are as aesthetically or conceptually simple as possible. They then wait for another company to develop a product that resembles the original and then file a claim of infringement, hoping that a manufacturer-defendant will agree to an early settlement.
“The parties that tend to come out on top are the biggest players – the Apples and Samsungs,” he wrote. “This interferes with smaller players’ ability to make headway on a useable portion of their own applications, because they can’t afford to risk a lawsuit from or pay the fees demanded by the trolls or big firms.”
Andrews recommends modernizing the design patent system in a variety of ways. First, impose a simple test: if the device would be less functional if the claimed aspect of the design were absent, the claim in question fails the non-functionality test. Second, courts should limit the findings of design infringement to cases in which the similar aspects of the article’s design perform an ornamental purpose, rather than a functional purpose. Third, both the U.S. Patent and Trade Office and the courts should renew their attention to the criteria of novelty and non-obviousness.
Finally, courts should make standard the practice that in “exceptional cases” of bad faith or misconduct, of awarding reasonable attorney’s fees to the prevailing party in a civil case.
The paper can be found here:
http://www.rstreet.org/policy-study/is-interactive-design-becoming-unpatentable
