posted by Thom Holwerda on Thu 11th Aug 2011 09:22 UTC

Not all bad & conclusion


All bad?

The Community Design process is not all bad. So far, I have looked at this from the perspective of large companies, which can easily abuse this system for anti-competitive practices. But what about smaller companies? Individuals that come up with great designs and seek protection for them? Well, for them, the Community Design is both a blessing and a curse.

When talking about smaller companies, the Community Design makes it easier for them to achieve EU-wide protection for their design, which is a great boon over the old way, which required getting protection in each separate member state. However, I personally believe that the dangers to small companies far outweigh the possible benefits.

A Community Design is not free, so while large companies like Microsoft and Apple can easily afford hundreds or even thousands of these sets of iterations or variations, which will cover a vast spectrum of possible design options, smaller companies and individuals cannot do this. Now imagine Apple copying the design of a small company (which they have done so many times before - see Konfabulator or Delicious Library). This company has a Community Design, and tries to get an injunction, and gets it.

Great. Now Apple will sift through its gazillion Community Designs, and will inevitably find one the smaller company is violating. Preliminary injunction granted to Apple, small company inevitably in major troubles, doesn't have the funds to counter Apple's legal barrage, end of story for small company unless it lifts the injunction against Apple - which in turn makes it impossible for the small company to compete against Apple. And, of course, the small company has to pay Apple damages for the period the injunction was active.

On top of that, small companies do not have the capacity to sift through what must by now be hundreds of thousands (millions?) of filed Community Designs - on top of the US and European patents they must already sift through. Larger companies, however, do. Again - the system is biased greatly towards large businesses. Its original intent may have been noble, but its wording and implementation are decidedly pro-big business.


Conclusion

I never expected this Community Design to be implemented this badly. As bad as US software patents are, at least infringement has to be proven (even for a preliminary injunction), and while marginal, at least the USPTO does some form of review before granting them. In addition, patents have to be worded, so there is the ability to write or design around them (to a degree).

The Community Designs are not reviewed, by definition valid once granted, and by filing in a country like Germany, you can be served with a preliminary injunction without ever knowing you've done something wrong. This injunction is possible to lift, of course, by convincing the courts of the invalidity of the Community Design in question - but this requires lengthy court cases, lots of funds, and at the end of the day, larger companies can always dig up another Community Design for you to invalidate.

Rinse and repeat.

This means the Community Design is basically a mostly unknown (to the public) tool for large companies to pummel each other as well as small, innovative start-ups to death with. All this only to the detriment of competition, and thus, to the detriment of consumers and mankind in general.

The Community Design needs to be overhauled considerably to better fulfill its indented function. A start would be to, in this day and age, only allow Community Designs based on actual, high-quality photographs of all sides of the device. In addition, only shipping devices may be granted - it is very detrimental to competition that large companies can just file endless variations of the same basic design.

Is this competition? Does this foster innovation? Is this good for the marketplace? Does this benefit consumers? Is this in any way conducive to a properly functioning market? Is this good for technological development? I think the United States Patent and Trademark Office has just met its match when it comes to incompetence. Amazing.

Table of contents
  1. The registration process
  2. Iteration, variation, prior art, & obviousness
  3. Not all bad & conclusion
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