Design Patents And Copyrights For Designs On Useful Articles

Two recent cases illustrate the potential benefits of protecting intellectual property rights with both design patents and copyrights, particularly for an article that has both utility and a design, including because a design patent infringement analysis may sometimes be more straightforward to apply. In a design patent case, Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, No. 3:15-cv-00064 (D. Or. Aug. 10, 2016), a court applied a clear-cut analysis in granting summary judgment of infringement of a design used for breathable heat-reflective material. In contrast, in a copyright case, Star Athletica, L.L.C. v. Varsity Brands, Inc., 136 S. Ct. 1823, No. 15-866, 2016 U.S. Lexis 3031 (2016), the Supreme Court has granted certiorari to examine the test of whether a feature of a useful article – such as a garment or piece of furniture – is conceptually separable from the article and thus protectable by copyright, which courts have consistently