Design Patents: An Alternative When the Low Standards of Copyright are Too High?
Southern Illinois University Law Journal, Vol. 31, p. 325, 2007
38 Pages Posted: 9 Mar 2007 Last revised: 17 Feb 2011
The standard for copyright protection is notoriously low - the work must be independently created and possess a minimal degree of creativity. Nonetheless, even with that generous standard, the courts and the Copyright Office recognize that certain works do not contain even that minimum level of creativity such that they are categorically refused copyright protection. Blank forms, and other forms that do not convey information, fall within this category. In contrast, and for good reason, the standard for design patent protection is much more burdensome. The field of design patents protects new, original, ornamental, and non-obvious designs. This more difficult standard, which generally subsumes the copyright standard, would lead one to assume that anything failing the low copyright standard would not be eligible for design patent protection. However, the Patent Office has issued design patents for blank forms and recent case law has either upheld design patent protection for blank forms or declined to categorically refuse such protection. This article explores the blank forms doctrine in copyright, the overlap between copyright and design patent protection, why the law's refusal to protect blank forms under copyright is necessarily inconsistent with the law's protection of blank forms via design patents, and possible judicial, Congressional, or administrative solutions to resolve this inconsistency.
Keywords: blank forms, copyright, design patent, patent, blank forms doctrine, Baker, originality, functionality, intellectual property
JEL Classification: K19, K29, K39, Z00, O34
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