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Design Protection and the Legislative Agenda

Duke University School of Law
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  • Law
  • Design
  • Law
  • Literature
  • Political Science


Design Protection and the Legislative Agenda DESIGN PROTECTION AND THE LEGISLATIVE AGENDA J. H. REICHMAN* I INTRODUCTION Design protection was one of the topics that engaged Chairman Robert W. Kastenmeier most strenuously during his long tenure as legislative overseer of intellectual property rights. As a Congressman who genuinely believed that the public interest was best served by free competition,' he never fully persuaded himself that domestic design industries needed more protection than the design patent law already afforded.2 The same convictions led him to resist the drive to protect integrated circuit designs in literary and artistic property law, although that drive eventually produced the Semiconductor Chip Protection Act of 1984.3 Unfortunately, the very design industries that were denied sui generis protection in 19764 soon turned to federal unfair competition law for a substitute form of relief that has produced increasingly anti-competitive effects. 5 Moreover, the decision to exempt one class of functional designs from the strict conditions of patent law in the Copyright © 1992 by J. H. Reichman * Professor of Law, Vanderbilt University. My thanks to the German Marshall Fund of the United States, the Kapor Family Foundation, the Vanderbilt University Research Council, and Dean John J. Costonis for funding the research on which this article is based. 1. See Robert W. Kastenmeier & Michael J. Remington, The Semiconductor Chip Protection Act of 1984: A Swamp or Firm Ground?, 70 Minn L Rev 417, 438-42 (1985) ("At the outset, the proponents of change should have the burden of showing that a meritorious public purpose is served by the proposed congressional action."); see also Robert W. Kastenmeier & David Beier, International Trade and Intellectual Property: Promise, Risks, and Reality, 22 Vand J Transnatl L 285, 305-07 (1989). The political tests used to evaluate whether the proponents of legal protection for any given subject matter have met their burden of proo

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