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The Devil Wears Prada: Why Fashion Needs Patent Protection

The ultimate point of the patent system is to create an optimal tradeoff between inventors and the public. The public gives the inventors limited monopoly rights in their invention in exchange for their creating more in the future. Inventions should also be refined over time through competition and further technological improvements. This paradigm should apply to all industries and give the optimum result for the public and the inventors. However, for the fashion industry the balance is off and should be restored with a fashion-specific patent regime.

The fashion industry generates $750 billion in the U.S. alone [1] and therefore is important to the American economy. Elements of the fashion industry are already taken care of by other intellectual property regimes such as branding through trademarks (where fashion status gets much of its value) and competition, copying, and knockoffs through copyright law [2]. Fitting fashion into the patent paradigm is problematic since as the industry stands currently, the protection is fractured among different elements of the industry and thus gives less than optimal protection to fashion design. To remedy this deficit, a fashion-specific patent regime should be created.

Neither Utility Patents nor Design Patents Suffice For Fashion Design Protection
Using utility patents to protect fashion design is insufficient because the only aspect of the fashion industry that would be protected would be the functional aspect of clothing. In order to receive a utility patent, the clothing would need to pass the required elements of novelty, usefulness, and non-obviousness [3]. Fashion runs into problems especially with the novelty requirement since so much prior art exists for the functional element of clothing. It would not be inconceivable to suggest that almost nothing is left to invent in terms of the functionality of clothing. However, clothing would still be considered a subject of patentability under the statutory requirements of: “process, machine, manufacture, or composition of matter” in the manufacture category, if anything else was invented. Just because it might be difficult at this point in time to conceive of a new functional clothing invention does not mean that none will exist in the future. This potential functional fashion innovation deserves protection as much as any other patentable item.

Because fashion does not sufficiently fit into the utility patent system, design patents seem to cover more of the important aspects of fashion protection. Design patents protect the “ornamental design of a functional item” and the requirements are that it be ornamental, novel, and non-obviousness [4]. To get a design patent, shape or configuration and surface decoration can be used separately or together to prove patentability of the design element [5]. However, the design patent system also does not sufficiently protect the fashion industry because a design patent can be invalidated if it has practical utility, and the application process can be longer than the life of the design (the application process is around 1-2 years, life of the design can be as little as the life of a design season which is 6 months, or less) [6]. Fashion is not merely ornamentation nor clothing function but a combination of the two.

Design sensibility for the fashion industry can include making a wearable piece of clothing with ornamentation aesthetics or using tailoring techniques to create new shapes, to name only a few. The fashion industry includes “ready-to-wear” fashion but also haute couture which can be extremely unwearable clothing that ends up being more sculpture or art [7]. Technology is increasingly being incorporated into clothing, with the result that some designs are extremely innovative electronically [8]. These high tech fashion designs have an even more difficult time fitting into either the utility system or the design system because the way the electronics fit into the design are even less clearly functional or ornamental. All of these facets are included in the fashion industry which makes the distinction between utility and design for the purposes of patenting a fashion design even more difficult to parse.

Patentability Should be Expanded Either Internally or Externally to Include Fashion Design
Intellectual property has experienced internal and external expansion over the years. Internal expansion is the concept that patents would be expanded to include fashion as a patentable industry, similar to the way in which business methods were determined by the courts to be patentable [9]. External expansion is the concept that there are three bubbles of exclusivity, trademark, copyright, and patents, and expanding externally would be adding a fourth bubble of exclusivity for fashion design. The closest the courts have ever come to creating a new property right in intellectual property was creating a quasi-property right in news [10]. In Cheney Bros. v. Doris Silk [11], the court declined to give fashion design seasonal protection because it would infringe on competition and decrease design innovation. However at issue in Cheney Bros. was the textile design on silk. Currently design patents cover textile design, and indeed are frequently used for such products. Therefore Cheney Bros. is not a controlling set-back for the expansion of intellectual property to include fashion design.

Either way of expanding protection for fashion design would be not only appropriate but also helpful as a reflection of the importance of the fashion industry to the American economy. The fashion industry clearly does not fit into neither the utility patent scheme nor the design patent scheme. In order for the public to get the full benefit of the fashion industry competition must be allowed to exist and bring prices down but on the other hand emerging designers and the powerful fashion houses must also be incentivized to innovate. A possible solution for the fashion industry would give a more time-limited patent protection to fashion design, and only for designs that truly are innovative [12]. Only truly innovative designs would pass the patentability tests of non-obviousness and novelty.

In this way fashion would still be subject to competition and pricing adjustment through the market once the patent runs out and then the innovation can become part of the public domain. However, for the limited time that the patent is in effect the designer can have a limited monopoly. This should serve to incentivize especially the smaller designers to be as innovative as possible so that during the time their fashion design is patented they can get their name out, strengthen their trademark and establish their copyright rights before the design goes back to the public. In this proposed scenario the public will still have the benefit of competition in the fashion industry giving them lower prices and a larger number of designs and innovation. However this will not come at the expense of the designer’s rights who will get a limited-time patent protection for their truly innovative design. This will allow smaller designers with less capital to put effort behind innovation without worrying about not being able to establish themselves before they begin. In addition, this type of regime might actually spur innovation in the fashion industry which at this point has just been recycling past decades of designs ad nauseum. A limited-time patent protection for fashion design would be a win-win situation for all involved.

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[1] 92 Virg. Law Rev. 1687, Dec 2006 Kal Raustiala and Christopher Sprigman, The Piracy Paradox: Innovation in Intellectual Property in Fashion Design; according to one source, others put the total at least a multi-billion dollar industry
[2] A proposed bill in Congress H.R. 5055 would amend Title 17 of the U.S. Code to give fashion design more protection.
[3] 35 U.S.C.
[4] 35 U.S.C. 171, 173
[5] Saidman DesignLaw Group, http://www.designlawgroup.com/tools_design_patent.cfm
[6] H.R. Rep. No. 105-436 at 12 (1998).
[7] See, e.g. Christian Dior couture fall 2007, Viktor & Rolf fall 2007, Yohji Yamamoto, Commes des Garcones
[8] See, e.g. Hussein Chalayan spring 2007
[9] State Street Bank v. Signature, 149 F.3d 1368 (Mass. 1998)
[10] INS v. AP, 248 U.S. 215 (1918)
[11] Cheney Bros. v. Doris Silk, 35 F.2d 279 (N.Y. 1929)
[12] Truly innovative designs could include past designs such as the wrap dress, bias cut, drop waist, bubble hem, and A-line skirts. The motivation is that if these such innovations were to be invented nowadays, they would get protection.

Posted by at April 8, 2007 9:13 PM in Commentary Posts