Recommended Reading: Horlander, "The U.S. Constitutional Limits of Product Configuration Trade Dress Rights"
The latest issue of The Trademark Reporter includes Karl Horlander's solid article, "The U.S. Constitutional Limits of Product Configuration Trade Dress Rights,"97 TMR 752 (May-June 2007). [download here]. Horlander is a proponent of a federal "right to copy" that would preclude a design patent owner from claiming product configuration trade dress protection beyond the design patent term.
Horlander summarizes the history and policies behind the Patent Clause of the U.S. Constitution and the recognition of the public's right to copy an invention claimed in an expired patent. He examines the relevant Supreme Court jurisprudence, and dissects the lower court rulings that have "eroded the public's constitutional right to possess and to copy slavishly the inventions of expired patents." Horlander then proposes a bright-line rule that requires an inventor to elect between product configuration trade dress and design patent protection.
For further discussion of the design patent/product configuration trade dress interface, see Clifford W. Browning, "TrafFix Revisited: Exposing the Design Flaw in the Functionality Doctrine," 94 Trademark Reporter 1059 (September-October 2004). [TTABlogged here].
Finally, a thank you to The Trademark Reporter for granting permission to provide a link to this article, which is Copyright© 2006 the International Trademark Association and reprinted with the permission of The Trademark Reporter®, 97 TMR 752 (May-June 2007)..