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Wednesday, January 19, 2011

Intellectual Property in Industrial Designs: Issues in Innovation and Competition

John R. Thomas
Visiting Scholar

Under current intellectual property laws, industrial designs may potentially be protected through design patents, trade dress, and copyright. In addition, the Vessel Hull Design Protection Act established a specialized, or sui generis, intellectual property right for the protection of boat hull designs. Some experts argue that the present intellectual property regime does not adequately protect industrial designers.

In the 111
th Congress, legislation was introduced that would have established proprietary rights in fashion designs. The Innovative Design Protection and Piracy Prevention Act, S. 3728, and H.R. 2196, the Design Piracy Prohibition Act, would have provided a three-year term of protection for fashion designs. Although S. 3728 was reported by the Senate Committee on the Judiciary (without written report), neither bill was enacted.

Also in the 111
th Congress, two bills would have established a “repair” exemption within the Patent Act. Although potentially of broad application, H.R. 3059 and S. 1368, each titled the “Access to Repair Parts Act,” appear to have been motivated by the enforcement of design patents that are said to restrict competition in the secondary market for automobile replacement parts.

The Senate has also recently provided its consent to ratify the Geneva Act to the Hague Agreement Concerning the International Registration of Industrial Designs, an international agreement that would allow U.S. designers more readily to obtain intellectual property protection overseas. Accession to this international agreement would require changes to the design patent statute, including expansion of the term of design patents from 14 to 15 years.

Recent, significant judicial developments concerning the scope of protection accorded to design patents have also occurred.

Supporters of sui generis regimes assert that they allow for protection of subject matter, like industrial designs, that at times fall outside traditional intellectual property paradigms. Proponents believe that these systems can prevent levels of free riding that ultimately discourage innovation. However, some observers are concerned that the proliferation of such systems may limit the ability of others to compete, ultimately diminishing consumer choice.

Date of Report: January 5, 2011
Number of Pages: 21
Order Number: RL34559
Price: $29.95

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