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access to care available to everyone else due process arguments about need for access to gender affirming care said what about coded references e g medical codes can be changed by sympathetic doctors there might not be explicit acknowledgement a yes we are tracking a bubbling to the surface rothman look for patents in the same spaces that don t use the magic words a scandinavia would be a place to look there rosenblatt can this tell us anything about trans self help and user innovation medicalization is partially good but also has big downsides the value and values of patent ideology tejas narechania one view there s a perfect number of patents that s just right his view there s no pure vision of patent law there are multitudes that are incommensurable irreducible to utils these are necessary and desirable outgrowth of living in a free plural society founders innovation national security morality or even natural rights distributional concerns all the policy considerations were there at the beginning the state law of federal patent enforcement paul r gugliuzza state bad faith statutes motivated by mass demand letter campaigns by bottom feeder trolls against end users effect reduce cost asymmetry b t accused infringers and npes permit finding bad faith based on inadequate info lack of investigation false misleading statements unreasonable deadlines settlement demands some laws apply only to suits against end users or by npes key issues that have repeatedly arisen who can sue and where personal jurisdiction via demand letters federal subject matter jurisdiction over state created claim one of these cases has finally reached the fed cir should courts imply a private right of action where the state laws aren t explicit otherwise it s left to state ags with resource collective action constraints what conduct is regulated core version is bad faith assertion but courts have disagreed over what constitutes an assertion or demand letter analogy to declaratory judgment standing courts also differ on what will ultimately establish bad faith is including a claim chart evidence of good faith or should the court examine the claim chart for misleadingness correctiness the preemption overlay objective baselessness as a prerequisite according to the fed cir bad faith is not enough if it s just subjective and the underlying infringement theory was not objectively baseless resembles the fed cir s tests for willful infringement and attorneys fees overturned by the supreme court so should this test survive remedies actual damages from assertion statutory damages attorneys fees for the bad faith litigation against anyone involved in the assertion and bonds what about anti abuse measures for assertion of the statutes used abusively reverse fee shifting doesn t like categorical exemptions based on patent asserter identity geographic gaps california and other states don t have these posted by rebecca tushnet at 3 59 pm no comments email this blogthis share to x share to facebook share to pinterest labels conferences copyright patent ipsc breakout session 4 design trademark ip boundaries backdoor trade dress rachael dickson strange things are afoot at the pto applications for line drawings of specific products they are not configuration marks for the product design they re just design marks in addition to the usual tm registration requirements configuration marks raise two concerns functionality and what level of distinctiveness is required product design requires acquired distinctiveness and pto usually requires significant evidence to allow a registration for product design not relying on 5 years of exclusive use some have received failure to function refusals a drawing of ear loops mark drawing is filed in form style customary for configuration marks consumers not used to it also refused on 2 d grounds b c loop has a registration for the configuration as well as a design patent backdoor trade dress risks skating past pto w o showing acquired distinctiveness or nonfunctionality description doesn t include limitations ra easily found 100 examples estimate of 100s more common issues descriptiveness failure to function 2 d if the maker has a configuration mark but also regularly approved for publication registration found 39 already registered overall pto doesn t have a clear reason to refuse these types of applications there s no we suspect you re going to do sketchy things w this refusal backdoor trade dress application types 1 designs identical to at least 1 goods listed 2 related to goods listed 3 designs unrelated to goods listed 1 should get a descriptiveness refusal lots of marks clearly taken from images online app for projection screens taken from an amazon product listing another with a toy caterpillar for children s toys 2 e g a drawing of a nonstick pan for oven mitts lavalier mike for guitars 3 water fountain for toys why possibly takedowns reg now cancelled used to file infringement notice on amazon against magnetic hooks sold by another party smukmagnet smukmagnet has a design patent though and so it filed a cancellation manufacturers do think this is what s happening ttab opposition on a soccer ball shaped light another example of a design for a child s tablet almost all the applications are from china amazon doesn t do any scrutiny can design marks be legitimate maybe for identical related designs but is this a tm function instead of ornamentation or indicating what the product is of course there are product design marks that sort of resemble other objects the taco bell bell etc but those aren t line drawings problems obtain trade dress style protections on online platforms w o having to meet trade dress requirements allows monopolization over functional elements or nonfunctional elements owned by others what next mark mckenna is this an actual competitive problem this depends on whether they re being used to assert rights what we know so far suggests this might be the tip of an iceberg also the gameability of the pto process configuration mark based 2 d refusals is implicitly suggesting that design marks are enforceable against configuration marks and vice versa which might be the wrong message the drawing of the product shouldn t cover the configuration of the product but also vice versa though the necessity of secondary meaning for the product configuration might provide an important constraint there sarah burstein can we make them disclose that they re not configuration marks a already a lot of boxes to check some of the apps already say this is not a configuration mark pto doesn t do much unless there s 1000s of applications jennifer rothman is this a trade dress problem or a pto registration problem pto registers many things that shouldn t be registered why b c they have time constraints and an orientation to help applicants succeed except for 2 d if there s no opposition it s probably going to get registered even if it shouldn t that s the bigger problem ai may make it worse what do we mean by design marks it s always challenging b c logos are design marks and trade dress is also design marks so we need clearer definitions design of versus design on a they re trying but there are new schemes every couple of years or so this is what i plan to write about the general implications of that cycling whack a mole ramsey this could be an opportunity to develop failure to function doctrine there are expressive uses decorative uses and possibly puzzling uses like this backdoor copyright sarah fackrell sct has worried about backdoor patents through or tm we should also be concerned about design patents used to get backdoor the conventional wisdom is that copyright is stronger than design patent is instantaneous design patent not cheap free low v five figures term broader but the creativity threshold for design patent is lower and there s no separability doctrine we re seeing this especially in the area of graphical user interface designs many of these would be below feist designs uspto has also engaged in expansion of subject matter in 1996s pto started accepting guis 2006 started accepting animated guis 2026 disembodied designs including projections holograms and virtual augmented reality statutory text what text statutory text new original and ornamental design for an article of manufacture not just a design a design for an article of manufacture the pto doesn t care a projected keyboard the pto says is a design for a computer b c it is produced by a computer does not compute side note it s not clear that machines are articles of manufacture what s going on 1 avoiding limits on and tm lawyers are very clear about this avoid fair use though egyptian goddess constrains scope 2 structural story a small group of attorneys with interests 3 harmonization claims e g singapore protecting designs for non physical products those lawyers are lobbying lots of offices once they got singapore to act they used it as a beachhead 4 financial incentives design patents make money for pto lawyers and securing does not who cares institutional issues hard to challenge this first pi decision was 2024 even though 1996 introduced guis competitors like samsung won t challenge b c they want their own gui design patents constitutional issues first amendment progress clause why isn t a movie design patentable subject matter doctrinal simultaneous move to destroy egyptian goddess test which has kept the scope of design patents narrow patent owners arguing for substantial similarity instead there s a history here projected designs have existed for a long time rt 1 you weren t worried about avoiding fair use but why isn t your presentation infringing since it comes from a computer 2 literature on this international phenomenon arbitrage w e g term extension 3 larger literature on tech bro fantasies of dematerialization of value a there was an assertion of rights by the kkk in a design patent that shows the potential risks mckenna claims of people being left out by the system what s the story they re telling about the gap a mostly they leave that out she s a thorn in their side b c she keeps saying why not assert the stories have changed b c the early claims were this is new and unprotected but it s more now these are designs we should get design patents ramsey textualist moment bolsters your statutory argument a in samsung the court says article of manufacture is anything made by hand or machine and that might be read to encompass projections q if designs are sub feist how are they novel a a whole paper on that quantum trademarking sayoko blodgett ford uncertainty principle it s impossible to simultaneously know precisely both the legal boundaries of a tm and how such boundaries are changing entanglement tms that share at least one boundary area are connected entangled doesn t mean that they infringe axes include mark goods fonts logo design etc superposition tm boundaries occupy all and no available locations simultaneously and probabilistically collapse tm boundaries are forced into a location in a specific legal context at a particular time by a particular observer e g which designs were actually used in commerce by apple computers apple corps beatles music label share boundaries not just word mark but multicolor apple logo and video laser discs featuring music share boundaries w computers fred yen is this an insight from quantum physics or a more general insight that measurement involves displacing an object in general if we don t carefully define the metaphor it may not be helpful related when we use the word measure the position of the tm does not exist prior to a declaration from a court this measure can t be taken w o litigation entanglement the problem of what happens as marks move towards each other geographically jennifer rothman do decisions actually fix position not sure there s any location in most cases there s a dispute and there may be decisions that make it more likely the mark is in a particular location but they don t pinpoint the boundaries of the mark a due to the uncertainty principle rt consider the effects of registration v litigation registration has different features that try to avoid some of these uncertainties e g the word mark in standard character form that doesn t care about font etc the list of goods services that don t care about channels of trade nationwide scope that doesn t care about actual business cumulative marks jim gibson with chris cotropia problematic marks often are not the first mark on the product service authorities aren t often careful about the secondary meaning evidence timberland case is an example of doing it right in the us these claimed features are not shown to have secondary meaning b c they always travel with a better known mark even if the evidence would otherwise suggest secondary meaning limping marks in the us but wants a doctrinal hook for looking at cumulative marks differently example hershey s able to enjoin art van where the cumulative marks do all the work in stopping the use b c there s no use of hershey s many examples are product packaging product design david barnes in 2009 advocated 1 trademark per source that s pretty radical but dannon at one point had registered marks for dannon live active cultures light fit and 7 benefits all on the same yogurt container which is probably a bad idea if there are already existing well known marks for these brands then the benefits to consumers are less weighty just as we think you need evidence to show secondary meaning for descriptiveness but we presume it for arbitrary marks you might consider requiring more for secondary marks most problematic low marginal benefit high cost to competitors the configuration of the hershey bar least problematic high marginal benefit low cost to competitors tapestry collection by hilton helps you place the instance on the spectrum of hilton quality tertium quid some marginal benefit some cost the nike swoosh versus the word mark nike could ratchet up renewal fees for overlapping claims we could also adjust protection enforcement side ramsey recent jdi decision in 9th circuit shows potential careful attention to what about the jdi trade dress was famous and only allowing dilution protection for that not for old no 7 on its own posted by rebecca tushnet at 1 31 pm no comments email this blogthis share to x share to facebook share to pinterest labels conferences design patent trademark older posts home subscribe to posts atom email subscription get new posts by email subscribe powered by aba blawg 100 subscribe to posts atom posts all comments atom all comments subscribe via rss or linkedin atom linkedin rss 2 0 use if this than that recommended but needs setup bright young wo man yo who the f is this harvard law school mastodon mostly repost of blog my website email me bluesky blog archive 2026 130 august 16 insurer can t use promotional event exclusion to executive liable for 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