EFF at the Patent Office: no new design patents

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Design is extremely important to the way people use and choose products, but design patents are not. They grant exclusive rights only on the ornamental characteristics of the products, which by definition are neither useful nor artistic; for those who are, utility patent and copyright protection exist instead. As we said before, we don’t need design patents because they restrict creativity, innovation and economic activity much more than they encourage. Unfortunately, the Patent Office is about to grant even more.

Design patents grant exclusive rights to features of ornamental products that are not useful enough to be patented or creative enough for copyright. As we said before, we don’t need design patents because they give too much power to those who give so little to the public. Unfortunately, the Patent Office wants to grant more design patents to those who contribute even less.

To do this, the Patent Office is proposing regulations that would open the floodgates to unprecedented and unnecessary types of computer-generated imagery (CGI) design patents. While the standards for CGI design patents are already far too low, the Patent Office wants to lower them even further by allowing patented designs on non-physical products, such as websites, software applications, and holographic projections.

We have never allowed patents on designs unrelated to physical products, and we shouldn’t be doing so now. Design patent holders have the power to prevent anyone in this country from making, using or selling what their patent covers. If companies can get patents on non-physical product designs, like website banners, they will have the right to sue anyone whose website uses the same or similar features to demand payment or force them to go. Stop. With the sky-high cost of litigation, companies with the resources to amass design patents will have tremendous power over what the web looks like to the rest of us.

We need to be especially careful about expanding corporate power over computer graphics during a global pandemic when face-to-face communication is a risk to public health. The last thing we need is more design patents restricting people’s ability to compete, create, and express themselves freely online. That is why the EFF has submitted comments urging the Patent Office not to take this novel and perilous approach.

Extending design patent protection to digital images means unnecessarily extending protection to content that already enjoys sufficient protection under copyright and trademark law. Allowing design patents to interfere more with graphic design creates particularly dangerous risks. Where copyright applies, the fair use protections under the First Amendment also apply. But there are no such protections for the use of patented designs. This makes the extension of patent protection for designs a threat not only to technological innovation and competition, but also to creativity and freedom of expression.

Despite these dangers, the Patent Office is proposing rules that will ensure that we will see more design patents and more patent litigation. The Bureau wishes to change the way it administers the part of the Patent Act that makes an “ornamental design for a manufactured article” eligible for protection by completely eliminating the “manufactured article” requirement. For example, the Patent Office admired Singapore’s decision to eliminate the requirement that “a design must be applied to a physical article in order to be protected”, thereby allowing patents on designs. graphical user interface (GUI) applied to a “product.” But in the United States, patents on non-physical product designs were never allowed.

Neither should they: Granting new and unprecedented design rights would wreak havoc on the U.S. economy as it already struggles to recover from the economic depression caused by the relentless COVID pandemic. -19. Today more than ever, people depend on computer technology and connectivity to work, learn, communicate with each other, and access essential products and services, from groceries to healthcare. We must not place any additional restrictions on the ability of people to create, use and communicate digital content.

To that end, Singapore may not be the best example to draw on – after all, its law also includes content-based bans on designs that are not in accordance with public policy or law. moral. If other countries are to serve as role models, it would be better to look to those that better align the values ​​of freedom of expression and individual choice in their design regulations. One such model is Germany, where the law governing registered designs explicitly states that a “computer program is not considered a product”.

As we have already written, former Director of the Patent Office Andrei Iancu worked overtime during his tenure to tip the scales in favor of patent holders and against technologists, start-ups and companies. end users. While his leaving the office is a positive sign, it will take a lot of time and work to rebuild himself from the damage he inflicted. If this proposal is adopted, however, the damage will be more pervasive and difficult to repair.

We call on the Patent Office to reconsider and abandon this effort to extend patent protection for designs. Instead of lowering patentability standards, we should empower examiners to reject flawed design patent applications under existing law. Granting more and worse design patents will only encourage exorbitant patent litigation and discourage the innovation and economic activity that the patent system is supposed to promote.


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