By Nicholas Eitsert
from Volume 12 (2022-2023)
Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.
Month: March 2023
A Hot Spit-Take: Why the Supreme Court Will Hold That There Is No Privacy Interest in Commercial DNA Data
By: Mounir Jamal
from Volume 12 (2022-2023)
Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.
The Constitution Commandeth: Thou Shalt Not Protect the Same Subject Matter Under Design Patent and Trade Dress Laws
By: Kenneth B. Germain and Louis H. Sitler
from Volume 12 (2022-2023)
Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.
Abstract
For many years and still currently, it has been assumed—and even expressly asserted—that it is perfectly permissible to “stack” various legal theories (concurrently or consecutively) to protect nonfunctional “designs” for products. This is despite infrequent but cogent arguments that the available theories, notably design patents and product design trade dress—both of which are based upon federal statutes—are not Constitutionally compatible due to at least the concept of Superfluity. The authors of this article carefully examine the origin, nature, and meaning of these two types of IP protections in the context of their two Constitutional bases—the Patent/Copyright Clause and the Commerce Clause—and conclude that, indeed, “stacked” protections are not Constitutionally permissible; the authors then recommend a workable solution which they dub, the “Kewanee Kompromise.”
