I am not sure how I feel about Design Patents, Early. On the one hand, they serve a purpose. On the other hand, I would not like to see any company be granted a patent on a square or rectangular tablet. When that happens, nobody else can sell a tablet, period. Until it is tossed.
So I am stuck. I know the system is damaged but I know it is important. I know some patents should not be granted but I also know that once granted, they must be protected.
Some patents/trademarks/service marks/copyrights/other things are issued that should not be issued/granted, and this is part of the problem and why there needs to be review of the system.
But that is why we have judges and federal courts. Sometimes there is injustice so that is why we have appeals and sometimes we have people that just do not care about IP and that is why we have Torrent Sites, Smiley.
The concepts of rights protection has not and in my opinion ought not change.
Personally, I see (again) the legal system out of step with technology and thinking that it's not. I am reminded of the wildly opposing views and insane and contradictory judicial decisions during the Microsoft anti-trust days saying that.
With the smoke settling in that case, thanks in large part to a good judge at the end, and with the explosion of personal tech in the decade since, the legal community seems to think and act as if they've crossed the boundary and are tech-ready. After all, they have laptops and smartphones themselves and everything - so - they know.
Not true.
It is easier for judges to form decisions when they have a firm understanding of things. They don't in this case and it's led to judicial activism.
Many like to believe that in good design, form follows function. Throughout time, this allowed some flairs and some panache to differentiate a form, for aesthetic and competitive purposes. And there have been competing forms when designers disagreed over the focus of functional elements.
Today in tech, we have devices whose design flairs are largely within the software and when form follows function with a market demand for sleek and compact devices, there is virtually no external flair - the very heart of design patents.
Not recognizing this, judges are out of their depth.
I've never heard of anything so ludicrous as a judge holding up two things that the entire buying market worldwide can easily differentiate and conclude they are not distinct, according to that judge.
That is but one example of my assertion of judicial activism.
To my knowledge, Panasonic never brought a design patent case against Goldstar for a department store black plastic CRT TV because both had same shape and same overall button placement - yet - they all did look the same.
And I think it's because 1) any judge would rightfully ask the point of one stripped-down TV being brought in complaint because the other was stripped-down, too and 2) would not declare they looked the same based on their experienced formed by ownership of an old wooden Magnavox and 3) the lawyers knew that.
Rights did not change, the trend in stripped down and similar consumer electronics didn't change - so that just means that the judicial has.
In my opinion.
