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Journal of Intellectual Property Law & Practice Advance Access published online on April 4, 2008
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpn057
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© The Author (2008). Published by Oxford University Press. All rights reserved

Supreme Court opens courthouse door to more patent challenges, but limitations on declaratory judgment jurisdiction remain

David C. Berry*
Legal context: This article concerns IP law in the USA and the Registered and Unregistered Community Design and Community trade mark law in the European Union.

Key points: The fashion industry profits from creative content, yet receives no legal protection under IP law in the USA. The argument against protection for fashion works stems from the belief that more design copying will lead to more incentive for new fashion designs, increasing commercial competitiveness. A reflection on challenges in US copyright, patent, and trademark law will explain why the Registered and Unregistered Community Design laws in European Union is the ideal solution for fashion design protection. Proposals to amend the Copyright Act to include the Design Piracy Prohibition Act are insufficient because they still do not provide the option of dual rights for designs. The EU extends its protection to designs that have a different overall appearance and to the trade origin of the product or service under Community trade mark law.

Practical significance: Adopting EU's scheme will provide economic privileges such as jobs and increasing commercial competitiveness within the USA. It will also increase creative expression among many other benefits.

Key Words: The Supreme Court's recent MedImmune decision adopts a more relaxed standard for establishing jurisdiction in cases challenging the validity or infringement of a patent in the USA. • Parties may commence suit under circumstances deemed ‘hypothetical’ or ‘advisory’ under prior decisions, so long as they can demonstrate a ‘definite and concrete’ dispute of sufficient ‘immediacy and reality’ to warrant a declaration of rights under the patent. • This article reviews the expanded availability of declaratory relief, including its application to licensing negotiations, and the remaining jurisdictional limitations.

Correspondence: * David C. Berry, Professor of Law, Director, Graduate Program in Intellectual Property Law Thomas M. Cooley Law School, Auburn Hills Campus 2630 Featherstone Road Auburn Hills, MI 48326. Email: berryd{at}cooley.edu


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