Design Patents are Theft, Not Just a 'Fraud on the Public,' Who Need Legislation to Restore Their Repair Rights
28 Pages Posted: 30 Aug 2021
Date Written: February 18, 2021
This Comment, forthcoming in the Berkeley Technology Law Journal, commends the excellent and timely historical analysis of Menell and Corren addressing design patent law and the awful historical development of its current functionality doctrine. Peter S. Menell & Ella Corren, Design Patent Law’s Identity Crisis, 35 Berkeley Tech. L.J. __ (2021). But their cogent analysis fails to focus adequately on the harm to the public from such fraud and restricts the scope of the fraud to functionality. Instead, I argue that design patents and the law surrounding them have been a series of category errors from the beginning. The entire concept of a design patent is a “fraud upon the public,” and it is the public that loses its rights (and pays from its metaphorical wallet) when that fraud occurs. The Comment traces these various category errors, suggesting that design rights be relegated to a sui generis regime rather than included in a technological patent regime.
Keywords: Design, patent, copyright, trademark, functionality, category error, legislation, interpretation
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