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Summary:
Under current intellectual property laws, industrial designs may potentially be protected through design patents, trade dress, and copyright. In addition, the Vessel Hull Design Protection Act established a specialized, or sui generis, intellectual property right for the protection of boat hull designs. Some experts argue that the present intellectual property regime does not adequately protect industrial designers. The 110th Congress has engaged in a number of activities with respect to industrial designs. Legislation that would amend the Vessel Hull Design Protection Act passed the Senate. Some experts believe that this statute has been underused because it allows competitors to copy a protected boat hull design so long as they introduce changes to the design of the deck. The Vessel Hull Design Protection Act Amendments of 2007, S. 1640, would specify that protection is available for designs of hulls and decks, either individually or in combination. Bills that would provide proprietary rights in fashion designs have also been introduced before the House and Senate. H.R. 2033 and S. 1957 would amend the Vessel Hull Design Protection Act to allow for the protection of fashion designs. The term of protection would be three years based upon registration with the U.S. Copyright Office. Another bill, H.R. 5638, would establish a "repair" exemption within the Patent Act. Although potentially of broad application, this legislation appears to have been motivated by the enforcement of design patents that are said to restrict competition in the secondary market for automobile replacement parts. The Senate has also recently provided its consent to ratify the Geneva Act to the Hague Agreement Concerning the International Registration of Industrial Designs, an international agreement that would allow U.S. designers more readily to obtain intellectual property protection overseas. Accession to this international agreement would require changes to the design patent statute, including expansion of the term of design patents from 14 to 15 years. Some legal experts have expressed concern that recent judicial developments concerning infringement standards for design patents have reduced their effectiveness in promoting innovation. The Court of Appeals for the Federal Circuit, which possesses national jurisdiction over design patent appeals, has recently agreed to reconsider these issues. Supporters of sui generis regimes assert that they allow for protection of subject matter, like industrial designs, that at times fall outside traditional intellectual property paradigms. Proponents believe that these systems can prevent levels of free riding that ultimately discourage innovation. However, some observers are concerned that the proliferation of such systems may limit the ability of others to compete, ultimately diminishing consumer choice.
