One standard of obviousness is whether a person having ordinary skill in the art would have been able to easily conceive of this idea, given the prior inventions in the field. With regards to design, however, there is a great deal of creativity and inspiration involved in the process. So even if a design is extremely simple in hindsight, how can a court deem that this unique artistic design is obvious?
It was this exact confusion that the Federal Circuit court clarified in their decision last October in the case of High Point Designs v. Buyers Direct. Both these companies manufacture fuzzy slipper socks, and a conflict occurred on similarities between their products. The district court determined that obviousness ought to be decided through the eyes of an ordinary observer, and claimed that the differences in design were extremely minute to an ordinary observer. However, the Federal Circuit court clarified that it should not be through the eyes of an ordinary observer, but rather of an ordinary designer. Since a designer is one qualified in determining the "visual impression" created by a product design, he or she should be the ones consulted in figuring out whether this design is obvious and whether a similarly designed product is violating the patent.
Design patents bring up an extremely interesting issue regarding patent legislation. Can creative works, whether in design or fashion, be patented? If they can be, how can it be determined that a design is unique or obvious?
Sources:
- http://www.lexology.com/library/detail.aspx?g=72280f98-dbdd-46ad-ad29-8190de373a8e
- http://patentlyo.com/patent/2013/09/high-point-v-buyers-direct-tell-me-more-tell-me-more-about-design-patents-and-103.html
It was this exact confusion that the Federal Circuit court clarified in their decision last October in the case of High Point Designs v. Buyers Direct. Both these companies manufacture fuzzy slipper socks, and a conflict occurred on similarities between their products. The district court determined that obviousness ought to be decided through the eyes of an ordinary observer, and claimed that the differences in design were extremely minute to an ordinary observer. However, the Federal Circuit court clarified that it should not be through the eyes of an ordinary observer, but rather of an ordinary designer. Since a designer is one qualified in determining the "visual impression" created by a product design, he or she should be the ones consulted in figuring out whether this design is obvious and whether a similarly designed product is violating the patent.
Design patents bring up an extremely interesting issue regarding patent legislation. Can creative works, whether in design or fashion, be patented? If they can be, how can it be determined that a design is unique or obvious?
Sources:
- http://www.lexology.com/library/detail.aspx?g=72280f98-dbdd-46ad-ad29-8190de373a8e
- http://patentlyo.com/patent/2013/09/high-point-v-buyers-direct-tell-me-more-tell-me-more-about-design-patents-and-103.html
You ask good questions, and I enjoy reading your posts. Please keep up with the assignments!
ReplyDelete"How can a court deem that this unique artistic design is obvious?"
ReplyDelete^This question that you bring up is very pertinent to every topic that we have studied in 190G throughout the semester, and I am very glad to see this umbrella post coalescing all my knowledge into one.
To answer your question, I think that maybe that is why copyrights are separated from patents — to separate the creative works that may or may not be outdated (with no foolproof way of affirming) from the processes or designs that can more clearly be patented.
I like how you brought up obviousness for design patents. What does obviousness even mean when it comes to art? It is crazy how the Federal Circuit is spending so much time debating on design patents for fuzzy slipper socks—I would think there are better uses of its valuable time. It is interesting how the district court thought that obviousness for design patents should be decided through the eyes of an ordinary observer, while the Federal Circuit thought that it should be through the eyes of an ordinary designer. Based on their definition of an ordinary designer, I wonder if all the designers have somewhat consistent decisions (or if it is more of a mix).
ReplyDelete