Brief on Behalf of Amicus Curiae Open Source Hardware Association in Curver Luxembourg, SARL v. Home Expressions Inc., No. 18-2214 (Fed. Cir.)
31 Pages Posted: 11 Oct 2019
Date Written: January 2, 2019
Curver Luxembourg, SARL v. Home Expressions Inc. is a case of first impression for the Court of Appeals for the Federal Circuit. The question on appeal is whether a design patent’s scope is tied to the article of manufacture disclosed in the patent.
In this amicus brief, the Open Source Hardware Association (“OSHWA”) explains the potential effects on open source hardware development, and design practice generally, of untethering design patent protection from the article of manufacture disclosed in the patent. A large percentage of open-source hardware combines both ornamental and functional elements, and industrial design routinely involves applying design concepts from disparate fields in novel ways. To engage in this practice, open-source hardware designers need to know the universe of available source material and its limits. Further, understanding the licensing requirements of open-source hardware begins with understanding how the elements that make up that hardware may or may not be protected by existing law. Accordingly, while many creators of open-source hardware do not seek patent protection for their own creations, an understandable scope of design patent protection is nonetheless essential to their ability to collaborate with other innovators and innovate lawfully.
The brief argues that the District Court in the case—and every district court that has considered the issue—correctly anchored the patented design to the article of manufacture when construing the patent. The brief explains that anchoring the patented design to the disclosed article of manufacture is the best approach, for several reasons. Connecting the patented design to the disclosed article of manufacture calibrates the scope of design patent protection to the patentee’s contribution over the prior art. It avoids encumbering the novel and nonobvious application of prior designs to new articles of manufacture, a fundamental and inventive practice of industrial design. It aligns the scope of design patent protection with its purpose: encouraging the inventive application of a design to an article of manufacture. This balances protection for innovative designs with later innovators’ interest in developing future designs. Finally, anchoring the patented design to the disclosed article of manufacture helps fulfill design patent law’s notice function by clarifying the scope of protection.
Keywords: design patent, open source, open source hardware
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