Patent Attorney Inadvertently Explains Why Design Patents Are Often Unnecessary

from the careful-what-you-say dept

Tue, Apr 8th 2008 7:03pm — Mike Masnick

Andy Blair writes "In an Op-Ed promoting 'shoring up' design patent protections, Chris Renk inadvertently shows us why in many cases design patents are unnecessary. He spends a couple of paragraphs talking about how the patent prosecution process is long and in many cases designs are obsolete by the time protection is granted. Renk then spends another paragraph or two talking about eroding enforceability. This demonstrates that innovation is happening despite questions about whether protection will be available or effective. If patent protection is an unnecessary component in the innovation equation, that pretty much negates the need to grant a temporary monopoly to incent that innovation. So the real reform necessary is not reinforcing protections, but evaluating whether they should be there at all, and if so in what form."

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Filed Under: design patents, patents

9 Comments

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Anonymous Coward, 8 Apr 2008 @ 8:23pm

and I thought the states had good lawyers.
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MLS, 8 Apr 2008 @ 8:30pm

Mr. Blair's time would likely have been put to more productive use had he taken the time to actually read the article.
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patent mcgee, 8 Apr 2008 @ 10:31pm

True
Mls is on point like a needle. Renk is talking about a specific type of patent, (not utility, or plant), just the design patent. The article makes sense, as the design patent is a different animal that utility or patent. The author assumes that the Renk is discussing patents in general, which he is certainly not doing. Design patents are based only on the ornamental or design of something, and nothing else (last only 14 years), which are arguably more like a copyright, or trademark. Also it seems unnecessary to get a design patent, since handbags, and other copied items, will most certainly be copied anyway, and it is a more limited protection. I am not an attorney, do not listen to me.
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Mike (profile), 9 Apr 2008 @ 2:25am

Re:
Mr. Blair's time would likely have been put to more productive use had he taken the time to actually read the article.

Actually, he did read the article. As he says, the point is inadvertently made. It's clear that Renk is trying to defend design patents, but in doing so basically shows why they're not necessary.
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Nasch, 9 Apr 2008 @ 8:50am

Re: True
Mike and Blair are the ones on point. You guys seem to think they're not reading or misunderstanding the article. I can't say conclusively, but I know I read and understood it, and it looks to me like Mike and Blair did too. Yes, these are design patents, and yes Rank (Renk?) inadvertently questioned the need for them. If the market moves so fast that products are obsolete before a patent can be issued, then there is little or no need for the patents anyway. If companies are continuing to innovate despite (or perhaps because of, either way doesn't matter for this discussion) design patents becoming weaker, this also may indicate that they're not necessary.

Counterfeit goods is a problem. If I buy a Mac, I want to know that it's a Mac and not an imitation. After all, Apple won't honor a warranty on something they didn't make (or license someone else to make). But what I haven't seen much of is details on how big a problem this is, specifically in the US. Companies should be able to protect their brands, but I hope there's a way that can happen that also fosters innovation and doesn't artificially drive up prices.
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MLS, 9 Apr 2008 @ 8:53am

Re: Re:
Mr. Renk's comments reflect the reality of the current design patent "process", a sometimes expensive process that can on occassion proceed at a pace that does not reflect the real world business interests of the applicant. This is not to say that design patents are unnecessary, but only that on many occassions the process is too slow.

Having read Mr. Blair's statement, it is clear he has a lack of understanding of the critical differences between utility and design patents. His use of the word "innovation" makes this only too clear. Knock-offs can hardly be said to represent "innovation".
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Gary, 9 Apr 2008 @ 10:23am

This could just as easily "prove" that people are willing to gamble that the patent system will survive in a form that rewards innovation. To prove that innovation is not impeded by a lack of patent protection, you would have to eliminate even the possibility that the system will provide protection. Otherwise, people could just as easily be inventing on the gamble that they can monetize their inventions.
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Mike (profile), 9 Apr 2008 @ 12:08pm

Re: Re: Re:
Mr. Renk's comments reflect the reality of the current design patent "process", a sometimes expensive process that can on occassion proceed at a pace that does not reflect the real world business interests of the applicant. This is not to say that design patents are unnecessary, but only that on many occassions the process is too slow.

Actually, he *inadvertently* does show that they are unnecessary, but the simple fact that we're seeing the market work find *despite* the process being too slow. That is the point.

Having read Mr. Blair's statement, it is clear he has a lack of understanding of the critical differences between utility and design patents. His use of the word "innovation" makes this only too clear. Knock-offs can hardly be said to represent "innovation".

Sure they can... read Matt Mason to understand why.
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Anonymous Coward, 19 Apr 2008 @ 8:10pm

Re:
Read the piece, you fucking idiot.
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