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Functionality in U.S. Design Patent & Community Design Law

Research Handbook on Design Law, Forthcoming

Indiana Legal Studies Research Paper No. 342

57 Pages Posted: 5 May 2016 Last revised: 7 Jun 2016

Jason J. Du Mont

Stanford Law School

Mark D. Janis

Indiana University Maurer School of Law

Date Written: April 30, 2016

Abstract

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.‚Äč

Keywords: Design Patent, Functionality, Community Design, Unregistered, Registered

Suggested Citation

Du Mont, Jason J. and Janis, Mark D., Functionality in U.S. Design Patent & Community Design Law (April 30, 2016). Research Handbook on Design Law, Forthcoming; Indiana Legal Studies Research Paper No. 342. Available at SSRN: https://ssrn.com/abstract=2773070

Jason J. Du Mont (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://jasondumont.com

Mark David Janis

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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