THE CRISIS IN THE LAW OF DESIGNS

Mr. Saidman will review the state of the law of design protection and enforcement, comparing the mounting difficulties now facing design owners in the PTO and the courts with the quite different situation just 5 years ago. His presentation will explore the effect of the Wal-Mart and Traffix cases on trade dress protection, the elusive separability requirement for designs in copyright law, and alarming design patent trends including the impact of Markman on design patent claims, the erosion of the "ordinary observer" and "point of novelty" infringement tests, the tightening of the test for functionality, and the narrowing of design continuation practice. He will conclude with several suggestions for buttressing the future viability of design protection in the US.