Speaking in a session on protection of trade dress and product design, Saidman admitted U.S. design patents potentially offered effective protection to designers, especially after last year’s Egyptian Goddess decision, which “completely transformed design patent law.” But he said that, at a cost of about $3,000 per claim, they are too expensive for small companies, especially for market-entry protection: “You have to gamble ahead of time over which of your products will hit the bullseye.”
The answer, said Saidman, is clear: “Don’t examine designs. Register them like they do in Europe.” He suggested the registration could be handled by the U.S. Copyright Office.
William T. Fryer of the University of Baltimore School of Law described the European design system as “the most advanced in the world.” But, in a debate with Saidman, he raised objections to the introduction of a design system in the U.S. notably that: “Designers cannot determine what features in use are protected.” He also said that a registered design would make some things, such as auto repairs, more expensive.
Saidman explained a number of proposals that have sought to extend design protection in the U.S. On April 30 this year a Fashion Bill was introduced in the House of Representatives and Saidman’s proposal draws on this.
