In a perverse twist, the Supreme Court’s 2017 Star Athletica copyright decision might have more significant effects on design patent protection and the larger intellectual property landscape than it will on copyright law’s useful article doctrine. As Professor Jane Ginsburg foretold, the works at issue in Star Athletica provided a poor vehicle for addressing the thorny problems bedeviling the useful article separability doctrine. Unfortunately, in their zeal to nudge the Court toward tighter limits on copyright eligibility for useful articles, several intellectual property scholars and advocates mistakenly argued that design patent protection extended to functional features of articles of manufacture as a means to persuade the Court that it should tighten copyright law’s useful article separability doctrine. The gambit backfired.
Volume 166 Issue 2 2017 Essay