Slippers and Smartphones

I have a guest post at the Washington Post’s Switch blog, If our top patent court screws up slipper patents, how can it rule sensibly on smartphones?, in which I rant about the ineptitude of a recent design patent opinion finding that this design for a fur-lined slipper was neither obvious nor functional:

The Federal Circuit is, in the words of my Post editor Tim Lee, a “rogue appeals court.” An excerpt from my post:

The trial court’s entirely sensible conclusion that the patent was invalid because the Snoozies’ fur lining was “functional” fared no better. According to the Federal Circuit, it was a mistake to ask whether the design’s “primary features” are functional; instead, the right question is whether the design is “primarily functional.” This distinction makes no sense in the context of the case: There is literally nothing to the Snoozies design other than fur and a slipper.

The Federal Circuit doesn’t generally see itself as a pro-patentee court. It thinks of itself as developing a rigorous and intellectually coherent body of law, which it applies even-handedly. But in the words of U.C. Irvine law professor Dan Burk, the result is a “clockwork lemon”: a “a wonderfully intricate and very precise axiomatic framework” that “bears no relationship to the actual needs” of the industries it affects. Like its utility patent doctrines, the Federal Circuit’s design patent doctrines systematically uphold patents that should never have been granted in the first place, giving trolls and titans the ability to extort settlements and muscle out the competition.