Drake IP 2013: Sarah Burstein, “Costly Designs”

Liveblogged from Drake IP Roundtable 2013.

Sarah Burstein discusses the costly screens model and its applicability to designs. The model divides the world based on private and social value of IP rights. Masur & Fagundes posit that there are no patents that had low private but high social value. Low value patents are just a nuisance. A cost-screen would screen out bad patents, not good patents.

For copyright, there are “vanishingly few” works with high private value but low social value. Theory is that it doesn’t matter if you register low private and low social value works, because nobody would want to use them.

Costly screens are “likely to select against socially harmful patents in disproportionate numbers” (Masur).

How would costly screens work in design patents?

  • High Private, High Social: New and creative (or at least popular); successful (eg Louis Ghost chair); or otherwise meaningful (e.g. One laptop per child)

  • High private, low social: Not new, not creative; even if not successful, can still be used to squelch competition. there might be issues here around spare parts, where product is lucrative but will be made anyway without design protection.

  • Low private, high social: New and creative but not successful; haute couture maybe; experimental & discursive design (where design looks more like art or science)

  • Low private, low social: not new, not creative, not valid.

Designs aren’t just like copyright, if we are concerned about social welfare. The low private, low social value designs are socially harmful. Introducing a costly screen might be useful to tackle these. In the EU, the cost of filing a design is a low 350 EUR. This is perhaps not the best thing to do, because it would allow more low value designs.