Functionality in U.S. Design Patent & Community Design Law
Research Handbook on Design Law, Forthcoming
57 Pages Posted: 5 May 2016 Last revised: 7 Jun 2016
Date Written: April 30, 2016
In this paper we present a comparative synthesis of recent developments in the jurisprudence of functionality, as it has arisen in U.S. design patent law and Community Design law. As we demonstrate, the law of functionality in both jurisdictions is marked by a number of serious internal tensions. In the U.S., recent Federal Circuit decisions in Ethicon and Sport Dimension offer some evidence of constructive progress towards resolving these tensions, although significant work remains to be done. In Europe, progress has been less discernible recently, despite the fact that Community Design rights are becoming increasingly important to its intellectual property enforcement landscape. We conclude that although the respective U.S. and European bodies of functionality doctrine share some common ground, we see little evidence of any emerging consensus about the role that functionality should play in calibrating design protection.
Keywords: Design Patent, Functionality, Community Design, Unregistered, Registered
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