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I have an Invention ... Now What?
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   Copying Their Design
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RMissimer
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Re: Copying Their Design
« Reply #5 on: Jun 12th, 2006, 3:50am »
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The catch-22 here is that it isn't the patent office that does this generally.  It is the courts.  They are taking rules of equity and expanding them into protections that do not really fit in a fixed type of protection.  My point is just like other forms of equity,  they make up the rules as they go along.
 
It is hard to defend against, and my point was that a defense should be made in advance of such acts.
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RS Missimer
Patents Penned, Inc.
PO Box 486
Butler, WI 53007-0486
(262) 565-8200
JSonnabend
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Re: Copying Their Design
« Reply #6 on: Jun 12th, 2006, 8:13am »
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The OP is off base a bit in his concerns, I believe.
 
First, the fact that the motorcycle is "functional" doesn't mean that all aspect of it are functional.  To the extent that non-functional aspects of it have come to identify OCC as the source of the motorcycle (or even a single, unknown source) then there is protectible trade dress.  The OP's post tacitly recognizes this by referring to the design as the "OCC" design.
 
The Weber grill comments are besides the point.  Weber sells a distinctively shaped grill.  One can immediately identify a Weber by the shape.  Unless someone can demonstrate that the shape performs a functional role, then why should anyone be able to benefit from Weber's trade dress any more than from the Weber name?
 
Second, to the extent that the motorcycle has artistic elements, its protected under copyright law.  The motorcycle certainly has some painted design elements that are artistic, and I would wager good sums of money that the sculptural aspects of the design are protectible much like, well, sculpture.  It's well settled that the incorporation of of a work of art into the design of a useful article does not vitiate copyright protection for the work of art.
 
Third, regarding the statement  
Quote:
Well “enriched by the work of others” sounds a little bias and entering into the world of morality rather than law.
broadly argues against all IP laws (and perhaps most other laws).  Indeed, preventing this unjust enrichment is what copyright is all about.  The law finds repugnant the notion of someone benefitting by taking the fruits of someone else's creative labor.
 
It seems to me that much of the OP's concerns deal with clearly defining IP owners' rights.  While that goal is laudable so as to give others clear guidance as to what they can and can't do, as any second year law school student will be quick to tell you, bright line tests trade predictability for inequity.  For instance, how would one create a bright line test for copyrights in useful articles or trade dress protection that didn't screw certain legitimate rights holders?
 
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
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JSonnabend@SonnabendLaw.com
RMissimer
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Re: Copying Their Design
« Reply #7 on: Jun 12th, 2006, 1:06pm »
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Jeff,
I agree.  The point of protection that OCC would stand on has totally to do with "one of" type artistic work.  Where it is in steel or in paint.  Copying those sort of designs would be risky, to those who want to avoid litigation.
 
If it were a harley then the risk increases because I would expect them to sue for anything.  They protect their nest (as it were).
 
It has little to do whether they can win, and everything to do with whether yoo can afford the cost of litigation.
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RS Missimer
Patents Penned, Inc.
PO Box 486
Butler, WI 53007-0486
(262) 565-8200
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