Whole Designs

In the past decade, there has been a renewed interest in the concept of patentable subject matter-that is, what kinds of things can you get a patent for? But this attention has, to date, been focused on utility patents, the patents that protect how things work. There has been scant attention paid to statutory subject matter and design patents, the patents that protect how things look. These patents have gained prominence in both practice and scholarship since the $1 billion verdict in Apple v. Samsung. The time has come to take the question of design patentable subject matter seriously. Today, the USPTO allows applicants to claim any visual characteristic of an article as a separate design, including small, immaterial, or functional fragments of an article. This Article argues that design patents should only be granted for whole designs-whole shapes, surface designs, or combinations-for articles of manufacture. This approach would better match the statutory text, allow for the development of intellectually coherent design patent doctrines, and better promote the progress of the decorative arts. It would also help define a clear domain for design patents to better channel designs among intellectual-property regimes

Uncreative Designs

It is often said that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result of the Federal Circuit making it more difficult to invalidate designs as anticipated or obvious. This Article argues that sub-Feist designs exist because the standard for “originality” (at least, in the sense of “minimal creativity”) is not really “lower” than novelty or nonobviousness—it’s just different. This has implications for how we think about the law and theory of copyright and patents as well as specific implications for design patent law and practice. Importantly, this suggests that we should take the word “original”—which is also an explicit statutory requirement for design patents—seriously. We should not assume that a design that qualifies, under the Patent Act, as “novel” and “nonobvious” is also “original” under the Feist standard. And if, as the Supreme Court has held, the Feist originality standard is a requirement of the Progress Clause, we should not let applicants use design patents to evade that requirement

The Truth About Design Patents

Design patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area—including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the U.S. Court of Appeals for the Federal Circuit, and we update the findings of those studies. Second, we consider a set of institutional questions that, to our knowledge, the prior literature has not even broached. Beyond the federal courts, we explore design patent enforcement at the U.S. International Trade Commission and the use of administrative procedures to challenge design patents in the Patent Trial and Appeal Board. These contributions contextualize the design patent system within the broader debates about U.S. intellectual property policy

Exports and Invoicing: Evidence from the 2015 Swiss Franc Appreciation

The Swiss National Bank's (SNB) elimination of the lower bound on the EUR/CHF exchange rate on January 15 2015 provides a unique setting to study how prices and quantities respond to changes in nominal exchange rates. In this paper, we complement the study of imports in Auer et al. (2020) by looking at how the response of Swiss export prices and export values varies across products according to the currency of invoicing at the border. The rate of pass through (measured in CHF) into export prices was much lower in industries with a higher share of CHF-invoiced export border prices. We show that industries with higher CHF-invoicing shares experienced substantially weaker export growth in the two-year period after January 2015. At short horizons, however, export quantities did not respond across industries as much as prices to the exchange rate shock

Unequal expenditure switching: Evidence from Switzerland

What are the unequal effects of changes in consumer prices on the cost of living? In the context of changes in import prices (driven by, e.g., changes in trade costs or exchange rates), most analyses focus on variation across households in initial expenditure shares on imported goods. However, the unequal welfare effects of non-marginal foreign price changes also depend on differences in how consumers substitute between imported and domestic goods, on which there is scant evidence. Using data from Switzerland surrounding the 2015 appreciation of the Swiss franc, we provide evidence that lower-income households have higher price elasticities. We quantify the contribution of heterogeneous elasticities for the unequal welfare effects of observed price changes between 2014–15 and for counterfactual shocks to the mean and dispersion of import price changes

Patent Law: An Open-Access Casebook

Patent Law: An Open-Access Casebook is a comprehensive casebook covering all the fundamentals of the United States patent system. It is designed to be used as the primary text in a 3-credit or 4-credit patent law course. Any portion of the casebook may also, of course, be used separately. The work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. If you are interested in preparing a derivative work, please contact the authors.The Table of Contents for the book is as follows: 1. Introduction 2. The Invention, the Patent, and the Claim 3. Patentable Subject Matter 4. Utility 5. Disclosure 6. Novelty 7. Nonobviousness 8. Claim Construction 9. Infringement 10. Defenses 11. Plants 12. Designs 13. Post-Grant Proceedings 14. Remedie

Exchange Rates and Prices: Evidence from the 2015 Swiss Franc Appreciation

The removal of the lower bound on the EUR/CHF exchange rate in January 2015 provides a unique setting to study the implications of a large and sudden appreciation in an otherwise stable macroeconomic environment. Using transaction-level data on non-durable goods purchases by Swiss consumers, we measure the response of border and consumer retail prices to the CHF appreciation and how household expenditures responded to these price changes. Consumer prices of imported goods and of competing Swiss-produced goods fell by more in product categories with larger reductions in border prices and a lower share of CHF-invoiced border prices. These price changes resulted in substantial expenditure switching between imported and Swiss-produced goods. While the frequency of import retail price reductions rose in the aftermath of the appreciation, the average size of these price reductions fell (and more so in product categories with larger border price declines and a lower share of CHF-invoiced border prices), contributing to low pass-through into import prices