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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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If not why not? | 201 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
If not why not?
Authored by: Wol on Tuesday, August 14 2012 @ 05:42 PM EDT
Because the government is required to follow "due process" if they
wish to seize private property. Granting a monopoly to one party is seizing that
self-same property from others.

That means "Intellectual Property" HAS to be new and novel in order to
be granted protection. If it's new and novel then there is no-one there to have
their property seized.

Okay okay I know in practice it doesn't work like that ...

But that's why "design patents", and trademarks, and trade dress and
that ilk are all justifiable. They are - supposedly - a unique niche carved out
by a supplier and any attempt by others to duplicate them is a "fraud on
the public" fooling them into paying for something they're not getting.

If you want to look at past history of this, look at how NCR gained a near
monopoly in its business ... (National Cash Register - and the robber baron
tactics it used to put other cash register manufacturers out of business).

Cheers,
Wol

[ Reply to This | Parent | # ]

Constitutional Basis for Design Patents
Authored by: Anonymous on Tuesday, August 14 2012 @ 11:43 PM EDT
Design patents aren't a subset of trademark, they're a subset of patent law.
There's some shared concepts, but then again, copyright and patent share
concepts, trademark and copyright, etc.

Design patents trace their authority to the IP clause, same as patents and
copyrights (and *unlike* trademark). The justification for design patents is
essentially that novel ornamental designs are important to promoting the
progress of the useful arts, in that ornamentation is one other way for
businesses to compete with one another (utility being the major way). Design
patents are there for the things that copyright won't cover and utility patents

can't cover - nothing about the IP clause says that the only forms of protection

that are allowed under it are copyright and patent.

[ Reply to This | Parent | # ]

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