Academic journal article Duke Law Journal

Intelligent Design

Academic journal article Duke Law Journal

Intelligent Design

Article excerpt

ABSTRACT

When designers obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are justified when they create incentives for designers to invest in new, socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime--copyright law, design patent law, or utility patent law--depending upon the type of design. Unfortunately, those screens are no longer working. Designers are able to obtain powerful IP protection over the utilitarian aspects of their creations without demonstrating that they have made socially valuable contributions. They are also able to do so without paying substantial fees that might weed out weaker, socially costly designs. This is bad for competition and bad for consumers.

In this Article, we integrate theories of doctrinal and costly screens and explore their roles in channeling IP rights. We explain the inefficiencies that have arisen through the misapplication of these screens in copyright and design patent laws. Finally, we propose a variety of solutions that would move design protection toward a successful channeling regime, balancing the law's needs for incentives and competition. These proposals include improving doctrinal screens to weed out functionality, making design protection more costly, and preventing designers from obtaining multiple forms of protection for the same design.

TABLE OF CONTENTS

Introduction
  I. The Centrality of Functionality
  II. Screens at the Intersection of Copyright and Design Patent
     A. The Theory Behind Doctrinal and Costly Screens
     B. Private Value, Social Value, and Screens
     C. Doctrinal Screens and the Selection of IP Regimes
           1. The Utility Patent Baseline
           2. Copyright Law
           3. Design Patents
     D. Costly Screens within IP
III. The Breakdown of Functionality Screening
     A. Star Athletica and the Lowering of Copyright Law's
        Functionality Bar
     B. The Failure of Design Patent's Screens
     C. The Additional Problem with Overlapping Trade Dress
        Protection
     D. The Dystopian Reality of IP Screening
IV. What Is to Be Done?
     A. Reining in Overpowered Design Rights
     B. Election of Rights
     C. Narrowing the Scope of Design Rights
     D. Raising the Cost of Design Protection
     E. Optimal Design Screening
Conclusion

INTRODUCTION

When designers obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are justified when they create incentives for designers to invest in new socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime--copyright law, design patent law, or utility patent law--depending upon the type of design. In doing so, it seeks to strike a balance between under- and over-protection and to ensure that stronger rights over functional elements are limited to those who satisfy the higher threshold of utility patents. The objective is to prevent designers from obtaining "backdoor patents" through another IP regime. (1)

IP law in the U.S. has two primary regimes for promoting creativity in the aesthetic or ornamental aspects of product design: copyright law and design patent law. (2) In theory, these separate regimes exist to handle different sorts of products, with different sorts of costs and benefits arising from IP protection. …

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