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Full-Text Articles in Law
Claiming Design, Mark Mckenna
Claiming Design, Mark Mckenna
Journal Articles
Design stands out among intellectual property subject matter in terms of the extent of overlapping protection available. Different forms of intellectual property usually protect different aspects of a product. In the design context, however, precisely the same features are often subject to design patent, trademark, and copyright protection-and parties commonly claim more than one of those forms. Yet, as we show, the claiming regimes of these three forms of design protection differ in significant ways: the timing of claims; claim format (particularly whether the claims are visual or verbal); the multiplicity of claims (whether and how one can make multiple …
What's In, And What's Out: How Ip's Boundary Rules Shape Innovation, Mark Mckenna, Christopher J. Sprigman
What's In, And What's Out: How Ip's Boundary Rules Shape Innovation, Mark Mckenna, Christopher J. Sprigman
Journal Articles
Intellectual property law sorts subject matter into a variety of different regimes, each with different terms of protection and different rules of protectability, infringement, and defenses. For that sorting to be effective, IP needs principles to distinguish the subject matter of each system. This paper focuses on one of the most important aspects of border-drawing that our IP system undertakes — identifying “useful” subject matter.
This aspect is critical because our IP system gives utility patent law pride of place and draws the boundaries of the other doctrines in large part to respect utility patent’s supremacy. Yet IP law’s sense …
Progress And Competition In Design, Mark Mckenna, Katherine J. Strandburg
Progress And Competition In Design, Mark Mckenna, Katherine J. Strandburg
Journal Articles
This Article argues that applying patent-like doctrine to design makes sense only if a design patent system is premised on a patent-like conception of cumulative progress that permits patent examiners and courts to assess whether a novel design reflects a nonobvious step beyond the prior art. If there is a meaningful way to speak of such an inventive step in design, then design patent doctrine should be based on that conception. If nonobviousness has no sensible meaning in design, then a patent system cannot work for design. At present, design patent doctrine is in disarray because it is unmoored from …