Design Patents: An Alternative When the Low Standards of Copyright are Too High?

Southern Illinois University Law Journal, Vol. 31, p. 325, 2007

U of Akron Legal Studies Research Paper No. 2007

38 Pages Posted: 9 Mar 2007 Last revised: 17 Feb 2011

Ryan G. Vacca

University of Akron School of Law

Abstract

The standard for copyright protection is notoriously low - the work must be independently created and possess a minimal degree of creativity. Nonetheless, even with that generous standard, the courts and the Copyright Office recognize that certain works do not contain even that minimum level of creativity such that they are categorically refused copyright protection. Blank forms, and other forms that do not convey information, fall within this category. In contrast, and for good reason, the standard for design patent protection is much more burdensome. The field of design patents protects new, original, ornamental, and non-obvious designs. This more difficult standard, which generally subsumes the copyright standard, would lead one to assume that anything failing the low copyright standard would not be eligible for design patent protection. However, the Patent Office has issued design patents for blank forms and recent case law has either upheld design patent protection for blank forms or declined to categorically refuse such protection. This article explores the blank forms doctrine in copyright, the overlap between copyright and design patent protection, why the law's refusal to protect blank forms under copyright is necessarily inconsistent with the law's protection of blank forms via design patents, and possible judicial, Congressional, or administrative solutions to resolve this inconsistency.

Keywords: blank forms, copyright, design patent, patent, blank forms doctrine, Baker, originality, functionality, intellectual property

JEL Classification: K19, K29, K39, Z00, O34

Suggested Citation

Vacca, Ryan G., Design Patents: An Alternative When the Low Standards of Copyright are Too High?. Southern Illinois University Law Journal, Vol. 31, p. 325, 2007; U of Akron Legal Studies Research Paper No. 2007. Available at SSRN: https://ssrn.com/abstract=968686

Ryan G. Vacca (Contact Author)

University of Akron School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States

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