Buccafusco, Lemley and Masur, ‘Intelligent Design’

Abstract
When designers obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are justified when they create incentives for designers to invest in new, socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime – copyright law, design patent law, or utility patent law – depending upon the type of design. Unfortunately, those screens are no longer working. Designers are able to obtain powerful IP protection over the utilitarian aspects of their creations without demonstrating that they have made socially valuable contributions. They are also able to do so without paying substantial fees that might weed out weaker, socially costly designs. This is bad for competition and bad for consumers … (more)

Christopher Buccafusco, Mark A Lemley and Jonathan S Masur, ‘Intelligent Design’, 68 Duke Law Journal 75-139 (2018).

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