Amicus Curiae Brief — TrafFix Devices, Inc. v. Marketing Displays, Inc.

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FILED

@ AUG 24 2000

No. 99.157 1

CLERK

Supreme Court, U.S.

In the

Supreme Court of the Anited States

TRAFFIX DEVICES, INC.,

. Petitioner,

MARKETING DISPLAYS, INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF

PANDUIT CORP. IN SUPPORT OF PETITIONER

ROBERT A. MCCANN Roy E. HOFER

Panduit Corp. (Counsel of Record)

17301 Ridgeland Avenue JEROME GILSON

Tinley Park, IL 60477 CYNTHIA A. HOMAN

(708) 532-1800 PHILIP A. JONES

Brinks Hofer Gilson & Lione

455 N. Cityfront Plaza Drive

Chicago, IL 60611

(312) 321-4200

Counsel for Amicus Curiae,

August 2000 PANDUIT CORP.

DIO

—

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... . iii

INTEREST OF THE AMICUS .................. 1

SUMMARY OF ARGUMENT ................... 2

I. THE BARGAIN EMBEDDED IN THE

PATENT LAWS IS BASED ON THE

. BPPPTTTTTITTTTTT TT TTT

II. THE SINGER DECISION OFFERS

THIS COURT A BRIGHT-LINE RULE

THAT HONORS THE LIMITED TIMES

PROVISION OF THE CONSTITUTION ..... 4

III. THE SINGER BRIGHT-LINE RULE

HARMONIZES THE PATENT LAWS

IV. IF THIS COURT ELECTS NOT TO AP-

PLY THE SINGER RULE, IT SHOULD

HOLD THAT TRADE DRESS PROTEC-

TION DOES NOT EXTEND TO AN UN-

REGISTERED PRODUCT CONFIGU-

RATION COVERED BY AN EXPIRED

V. ATAMINIMUM. FEATURES CLAIMED

IN AN PATENT SHOULD

BE DENIED TRADE DRESS PROTEC-

VI. THE COURT SHOULD TAKE THIS

OPPORTUNITY TO EXPUNGE THE

“SIGNIFICANT INVENTIVE ASPECT”

REQUIREMENT OF VORNADO ..........

VII. FINDING FOR THE PETITIONER

WILL FOSTER FAIR COMPETITION

AND FURTHER THE PUBLIC INTER-

T..ÿj ... 6 6 6 „„ %%

TABLE OF AUTHORITIES

CASES PAGE(S)

Atlantis Silverworks, Inc. v. 7th Sense, Inc.,

42 U.S.P.Q.2d 1904 (S.D.N.Y. 1997) ........... —

Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,

r . 0 6, 14

Kellogg Co. v. National Biscuit Co.,

e . . .. . 6 0 6, 9

Kewanee Oil Co. v. Bicron Corp.,

e ̃ Ä 5 3

Marketing Displays, Inc. v. TrafFix Devices, Inc.,

971 F. Supp. 262 (E. D. Mich. 1997),

aff'd in part, rev'd in part, 200 F.3d

929 (6th Cir. 1999), cert. granted,

r . ee 6

Marketing Displays, Inc. v. TrafFix Devices, Inc.,

200 F.3d 929 (6th Cir. 1/99),

cert. granted, 120 S. Ct. 2715 (2000) .......... 15

Qualitex Co. v. Jacobson Prods. Co.,

r . 6 4

Scott Paper Co. v. Marcalus Mfg. Co.,

r cosccceeccceccce 6,9

Sears, Roebuck & Co. v. Stiffel Co.,

376 U.S. 225 (1964)... 2... eee eee ee 5, 6

Singer Mfg. Co. v. June Mfg. Co.,

III . passim

Thomas & Betts Corp. v. Panduit Corp.,

138 F.3d 277 (7th Cir.),

cert. denied, 525 U.S. 929 (1998) .............. 1

Two Pesos, Inc. v. Taco Cabana, Inc.,

I o occcusesedesencsenseenbs 8

United States v. Dubilier Condenser Corp.,

. « oc cenececsesueesueeseeens 6

Vornado Air Circ. Sys., Inc. u. Duracraft Corp.,

58 F.3d 1498 (10th Cir. 1995),

cert. denied, 516 U.S. 1067 (1996) ............ 12

Wal-Mart Stores, Inc. v. Samara Bros., Inc.,

BEDE. GR. BERD Gee cc ccccccccsccecessese 4,8

CONSTITUTIONAL PROVISIONS

U.S. CONST.

Ir 3

STATUTES

BS UG. © BRED oo couccdcnsscocsdéesesaseceen 8

ee LE OO

OTHER AUTHORITIES

RESTATEMENT (THIRD) OF UNFAIR COMPETITION

I pcticceduceosceseaeeneeses 14

TREATISES

J. THOMAS MCCARTHY, MCCARTHY ON

TRADEMARKS AND UNFAIR COMPETITION

§ 23:122 (4th ed. 1997)77⸗ 14, 15

BRIEF AMICUS CURIAE OF PANDUIT CORP.

Panduit Corp. submits this brief as Amicus Curiae

in the above action in support of Petitioner.’ Panduit

Corp. has the permission of the parties to submit this

brief.

INTEREST OF THE AMICUS

Panduit Corp. is the defendant in pending litigation

with Thomas & Betts Corp. and Thomas & Betts Hold-

ings, Inc., in the United States District Court for the

Northern District of Illinois (Civil Action No. 94 C 2656),

which involves claims of trade dress infringement for

the subject matter of expired utility and design patents.

In 1998, Panduit Corp. filed a Petition for Writ of

Certiorari (Case No. 98-179), which was denied, after

the Court of Appeals for the Seventh Circuit reversed

the District Court’s grant to Panduit Corp. of summary

judgment on the trade dress claims. See Thomas & Betts

Corp. v. Panduit Corp., 138 F.3d 277 (7th Cir.), cert.

denied, 525 U.S. 929 (1998). The Court of Appeals for

the Sixth Circuit in this action (200 F.3d at 939) cited

the Seventh Circuit’s decision, as did the Petitioner in

its briefs in support of its Petition (Petition, p. 13; Reply,

p. 7 n.7).

pursuant to Rule 37.6, Amicus states that this brief was not

authored in whole or in part by counsel to a party, and that

no person or entity other than the Amicus and its counsel

made a monetary contribution to the preparation or submis-

sion of the brief.

Panduit Corp. writes to advance a view of the issue

under review not previously found in the parties’ argu-

ments, namely that the bright-line rule enunciated by

this Court in Singer Mfg. Co. v. June Mfg. Co., 163 U.S.

169 (1896), should control the Court’s decision.

SUMMARY OF ARGUMENT

This Court should use this occasion to reaffirm and

follow its holding in Singer Mfg. Co. v. June Mfg. Co.,

163 U.S. 169, 185 (1896), and enunciate a bright-line

rule that bars trade dress protection for “the thing form-

erly covered by the patent” because, upon expiration of

the patent, the right to make that thing “becomes public

property.” Such a rule would clarify matters for courts

and competitors and stop the erosion of the public’s

bargain with inventors as set forth in the Constitution.

Such a rule also would harmonize the patent laws with

the trademark laws.

If this Court declines per se to apply Singer to this

case, it still should find for Petitioner and hold, consis-

tent with Singer, that unregistered product features

covered by an expired utility patent are not eligible for

trade dress protection. At a minimum, this Court should

hold, without any additional conditions, that unregis-

tered features claimed in a patent are not protectable

under the trademark laws. Whichever of these routes

the Court chooses, its guiding light should be to protect

the basic tenet of our free market system—that copying

is essential.

ARGUMENT

I. THE BARGAIN EMBEDDED IN THE PATENT

LAWS IS BASED ON THE CONSTITUTION

The fundamental basis of the patent laws is the bar-

gain between the inventor and the public. The inventor

enjoys a private right—for a limited time—to exclude

the public from using the invention, in return for public

disclosure of the invention and its dedication to the

public. This carefully balanced bargain lies in the Patent

Clause of the United States Constitution.

Article I provides that Congress shall have the power

tjo promote the Progress of Science and useful Arts, by

securing for limited Times to Authors and Inventors the

exclusive Right to their respective Writings and Dis-

coveries.” U.S. Const. art. I, § 8, cl. 8. Following the

Constitution’s directive, Congress enacted the first

patent law in 1790, and defined the limited time of

exclusivity. In 1994, Congress amended the present

Patent Act to provide that a patent expires twenty years

after filing of the application for patent.

As reasoned by this Court, the Framers plainly in-

tended to “promote the Progress of Science and useful

Arts” by limiting the period of exclusivity so that the

public could use and enjoy the invention once the

inventor had reaped the benefits of his or her invest-

ment of time, research, and development. See Kewanee

Oil Co. v. Bicron Corp., 416 U.S. 470, 480-81 (1974). Pre-

venting the public from freely adopting the features of

the expired patent beyond the limited Times dictated by

the Constitution, runs counter to the directive of the

Constitution’s Framers, and thereby upsets the original

patent bargain.

Recent decades have seen a growth in the recognized

subject matter of the trademark laws. See Wal-Mart

Stores, Inc. u. Samara Bros., Inc., 120 S. Ct. 1339 (2000);

Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1995).

It is inevitable, therefore, that parties eventually would

seek to apply the trademark laws to unregistered trade

dress or product configurations found in expired utility

patents. This conflict has come to full boil as some bene-

ficiaries of the patent bargain—the patent holders—seek

to breach their limited Times bargain by bootstrapping

the subject matter of their expired patents to the

Lanham Act and preventing the public from enjoying its

benefit of the patent bargain. This Court must step in to

declare that when the limited Times period ends, the

Lanham Act cannot perpetuate the period of exclusivity.

The patent holder and the public struck their deal when

the patent was granted. This Court should now uphold

the bargain by declaring that trade dress protection

cannot resurrect what the patent law has laid to rest.

Il. THE SINGER DECISION OFFERS THIS COURT A

BRIGHT-LINE RULE THAT HONORS THE LIM-

ITED TIMES PROVISION OF THE CONSTITUTION

Over 100 years ago this Court faced a case involving

expired patents and related trademark claims, Singer

Mfg. Co. v. June Mfg. Co., 163 U.S. 169 (1896). Singer

provides this Court with the precedent and opportunity

to find for the Petitioner and reverse the decision below.

In Singer, this Court made a bright-line rule and

firmly and unequivocally found that the rights of the

patent holder in an invention and the product configura-

——, ss, 7. . * a

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8832

tion end with the expiration of the patent. Justice White

stated:

It is self evident that on the expiration of a

patent the monopoly created by it ceases to exist,

and the right to make the thing formerly covered

by the patent becomes public property. It is upon

this condition that the patent is granted. It fol-

lows, as a matter of course, that on the termina-

tion of the patent there passes to the public the

right to make the machine in the form in which

it was constructed during the patent. We, may,

therefore, dismiss without further comment the

complaint, as to the form in which the defendant

made his machines. ,

Singer, 163 U.S. at 185.

The benefit to the public of free competition in the

manufacture and sale of a product upon expiration of

the patent is manifest in Singer. There, when the mo-

nopoly on the sewing machine ended upon expiration of

the patents, prices were “very materially reduced,” and

competitors sprang up with their own versions of Sing-

er's sewing machines. Id. at 174. The plaintiff in Singer,

predictably, as Respondent has done here and others

have done before and since, turned to trademark law in

an effort to take away from the public what it had pre-

viously been given, namely, the right to make the thing

formerly covered by the patent. See id. at 174-75.

Since the decision in Singer, this Court has held to its

view that upon expiration of the patent, “the right to

make the article—including the right to make it in pre-

cisely the shape it carried when patented—passes to the

public.” Sears, Roebuck & Co. v. Stiffel Co., 376 U.S.

225, 230 (1964) (citing Kellogg Co. v. National Biscuit

Co., 305 U.S. 111, 120-22 (1938)).

This Court also has repeatedly declared that the

patent laws amount to a bargain wherein the inventor

receives a limited monopoly in exchange for the place-

ment of the invention in the public domain after the

patent expires. See Bonito Boats, Inc. v. Thunder Craft

Boats, Inc., 489 U.S. 141, 150-51 (1989); United States v.

Dubilier Condenser Corp., 289 U.S. 178, 186-87 (1933).

Any continuation of the monopoly “after the patent ex-

pires, whatever the legal device employed, runs counter

to the policy and purpose of the patent laws.” Scott

Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 256

(1945).

In Singer, the plaintiff marked its sewing machines

with the patent numbers that protected them and ex-

cluded competition. Singer, 163 U.S. at 175. The use

of the patent numbers declared to the world that the

product was protected, with the price being that the

product was free to be copied upon expiration of the

patents, and that the patent owner understood this. In

this case, Respondent also marked its product with the

relevant patent numbers. See Marketing Displays, Inc.

v. TrafFix Devices, Inc., 971 F. Supp. 262, 264 (E.D.

Mich. 1997), aff'd in part, reud in part, 200 F.3d 929

(6th Cir. 1999), cert. granted, 120 S. Ct. 2715 (2000).

This Court should follow here the bright-line view that

it previously declared in Singer. Under the rule, Respon-

dent would not be allowed to use trade dress law and

the Lanham Act to bar competitors, such as Petitioner,

from making the thing formerly covered by the patents

because the right to make it is now public property. See

Singer, 163 U.S. at 185.

Deciding this case by applying the Singer bright-line

rule would provide certainty to legitimate competitors in

our free enterprise system. When a patent expires, com-

petitors may imitate, and copy if desired, the form-

erly-patented product. This is the Constitutionally-

mandated price for the limited monopoly enjoyed by

the inventor.

III. THE SINGER BRIGHT-LINE RULE HARMO-

NIZES THE PATENT LAWS AND THE LANHAM

ACT

With decisions such as that of the Sixth Circuit in this

case, competitors face a quandary when a patent ex-

pires: may they copy the invention, as has been their

long-standing expectation under Singer and its progeny,

or will trade dress protection and the Lanham Act step

in and do what the Constitution forbids, i.e., extend the

limited period of exclusivity in perpetuity? If this Court

applies the Singer bright-line rule, there will be no

question about what a competitor can or cannot do. The

patent expired, ergo, competitors may fairly compete by

making and selling the product previously covered by

the patent.

If this Court applies the Singer rule to this case, it

actually would harmonize patent law with the Lanham

Of course, if the product were covered by multiple patents,

as was the case in Singer, the bright-line rule would apply to

the features of the product as the patents expired.

Act. Following Singer would immeasurably clarify trade

dress law, while still allowing for Lanham Act protection

in deserving cases. Nonfunctional product design trade

dress is, of course, subject to protection under Section

43(a) of the Lanham Act, 15 U.S.C. § 1125(a), if it has

acquired distinctiveness and if confusion is likely. See

Wal-Mart, 120 S. Ct. at 1343; Two Pesos, Inc. v. Taco

Cabana, Inc., 505 U.S. 763 (1992).

But in the case of an expired utility patent, because

the patent owner already has reaped the benefit of the

patent bargain, policies and equities shift dramatically

away from the patent owner to the public, and the trade

dress test for legal functionality is greatly simplified.

Under Singer, a court considering a product design trade

dress claim need look only to the four corners of the

patent, the same as the business seeking to compete has

a legal right to do. A feature of the patented product is

legally functional if it is found in the patent. See

Atlantis Silverworks, Inc. v. 7th Sense, Inc., 42 U.S.P.Q.

2d 1904, 1910 (S.D.N.Y. 1997) (granting summary judg-

ment dismissing unfair competition claim because al-

leged trade dress features were the subject of a utility

patent and were, therefore, functional). If the feature is

in a patent, it is not protectable under the Lanham Act,

and its term of protection under the law will not exceed

the life of the patent. This is the only approach that does

not do violence to the limited Times mandate of the

Constitution, and that reconciles the patent and trade-

mark laws.

If a competitor cannot rely with certainty on the prod-

uct features disclosed in the patent, and adopt them,

;

effective competition is restrained as a matter of law

and the public automatically loses. This rationale ex-

plains why this Court has held that a patent owner may

not extend its right to exclude by resorting to the trade-

mark law and registering as a trademark any particular

descriptive matter appearing in the specifications, draw-

ings or claims of the expired patent, whether or not such

matter describes essential elements of the invention or

claims.” Scott Paper, 326 U.S. at 256 (citing Kellogg, 305

U.S. at 117-20, and Singer, 163 U.S. at 185).

Moreover, following the Singer bright-line rule and

denying trade dress protection to features of expired

utility patents does not mean that public confusion will

reign. Instead, the patent owner may use the trademark

laws to protect the indicia of source, such as the trade-

mark, the packaging, and even the color of the product,

if distinctive. At the same time, the competitor who opts

to use the features of the expired patent will be required

under settled Lanham Act law to adopt its own, differ-

ent, indicia of source to avoid both confusion and a claim

of infringement. Thus, refusing Lanham Act rights in

the features disclosed within the four corners of an ex-

pired utility patent in no way will subject the public to

confusion.

Singer applied the same rationale. In Singer, this

Court held that the defendant was permanently en-

joined “from marking upon sewing machines or upon

any plate or device connected therewith or attached

thereto the word “Singer,” or words or letters equivalent

thereto, without clearly and unmistakably specifying in

connection therewith that such machines are the prod-

uct of the defendant or other manufacturer, and there-

fore not the product of the Singer Manufacturing Com-

pany.” Singer, 163 U.S. at 204. This Court recognized

that the public must be kept free from confusion, yet

also recognized that there are other means of achieving

that aim rather than denying the defendant the Con-

stitutionally-mandated right to copy when a patent

expires.

IV. IF THIS COURT ELECTS NOT TO APPLY THE

SINGER RULE, IT SHOULD HOLD THAT TRADE

DRESS PROTECTION DOES NOT EXTEND TO

AN UNREGISTERED PRODUCT CONFIGURA-

TION COVERED BY AN EXPIRED PATENT

If this Court declines per se to apply the Singer bright-

line rule, then it still should find, consistent with Singer,

that trade dress protection does not extend to an unreg-

istered product configuration “covered” by an expired

patent. Although such a holding would reduce the scope

of the holding in Singer, thereby hampering compétition

to a certain extent, at least it still would preserve the

core elements of the limited Times provision. Any fea-

ture found in an expired patent would not be eligible for

trade dress protection. The rule would be clear to courts

and to competitors. Further, such a rule would not fore-

close the possibility that the holder of an expired patent

could rely on other distinctive source-identifying fea-

tures to distinguish its products and to maximize good-

will with the public from the products developed by

competitors.

Petitioner and Respondent have been vague in their

briefs on the Petition for Writ of Certiorari, and in the

Question Presented, as to what covered by an expired

utility patent” means. Panduit Corp. respectfully sub-

mits that this Court should declare what is meant by

“covered by.” This Court should hold that a feature

found in any part of an expired utility patent, i.e., the

drawings, specification, or claims of an expired patent,

is “covered by” the patent, and is available for copying

upon expiration of the patent.

V. ATAMINIMUM, FEATURES CLAIMED IN AN EX-

PIRED PATENT SHOULD BE DENIED TRADE

DRESS PROTECTION

At a minimum, this Court should hold that unregis-

tered product features claimed in an expired patent may

not be protected under trade dress law. Features set

forth in the patent claims are the invention for which

the patent has been issued. The features in the patent

claims have been disclosed to the public via the patent

process, and in return the inventor has received a lim-

ited Times period of exclusivity. These are the features

that must, at a minimum, be denied trade dress pro-

tection. To do otherwise would eviscerate the limited

Times provision declared and repeated in a legion of this

Court’s decisions.

VI. THE COURT SHOULD TAKE THIS OPPORTU-

NITY TO EXPUNGE THE “SIGNIFICANT INVEN-

TIVE ASPECT” REQUIREMENT OF VORNADO

The Court of Appeals for the Tenth Circuit decision

cited by the Sixth Circuit in this case found that trade

dress protection does not extend to features claimed in

an expired utility patent. See Vornado Air Circ. Sys.,

Inc. v. Duracraft Corp., 58 F.3d 1498 (10th Cir. 1995),

cert. denied, 516 U.S. 1067 (1996). However, in Vornado,

the court held that the claimed feature also must be “a

described, significant inventive aspect of the invention.”

Vornado, 58 F.3d at 1510 (emphasis added).

As noted above, denying trade dress protection to a

feature claimed in an expired utility patent is the min-

imum scope of the holding this Court should issue. The

addition by the Tenth Circuit in Vornado of the “signifi-

cant inventive aspect” requirement only furthers the

uncertainty experienced by legitimate competitors be-

cause it adds an unknown, unquantifiable parameter.

Under Vornado, one could have a situation where

trade dress protection might extend to a feature claimed

in an expired utility patent because it was determined

not to be a significant inventive aspect of the patent.

This would result in a situation where a feature claimed

in an expired patent, and thus a feature that was sub-

ject to patent protection during the limited Times

period, could receive perpetual protection under the

trademark laws because it was later found not to be a

significant inventive aspect of the expired patent.

Further, the significant inventive aspect element adds

uncertainty to an area where this Court clearly has

demonstrated a desire to lessen uncertainty by granting

the Writ. Under the rule in Vornado, finding the feature

in the patent, or in the claims of the patent, would not

necessarily mean that it is available for copying upon

expiration of the patent. Competitors would have to

conduct an ethereal analysis into whether the feature is

a significant inventive aspect. Many situations will like-

ly be close, and legitimate competitors would likely be

deterred from copying such a feature—harming the pub-

lic by denying it the benefits of free competition, and the

benefits of the limited Times bargain set forth in the

Constitution.

This Court should take this opportunity to state that

the “significant inventive aspect” requirement has no

part in determining whether trade dress protection may

be afforded to a feature claimed in an expired utility

patent.

Vil. FINDING FOR THE PETITIONER WILL FOSTER

FAIR COMPETITION AND FURTHER THE PUB-

LIC INTEREST

The Founding Fathers had great foresight in drafting

the limited Times provision. They realized that the gov-

ernment should encourage American invention and in-

genuity by bestowing benefits upon an inventor, but that

those benefits should not last in perpetuity. The limited

Times provision balances rewarding the inventor with a

period of exclusivity and the public interest in fostering

competition.

This Court has rightly been true to the limited Times

concept. To do otherwise would make fair competition

impossible. Free and fair competition needs certainty;

the ruling below by the Sixth Circuit only muddies the

water.

The cost and time of investigations, legal opinions,

and, probably, consumer surveys, place significant re-

strictions on the public’s ability to practice the invention

and thus operate as a barrier and deterrent to free and

open product competition, which is “a fundamental

premise of the free enterprise system.” RESTATEMENT

(THIRD) OF UNFAIR COMPETITION § 1 cmt. a (1995). In-

deed, these investigations, opinions, and surveys would

make it economically burdensome for a small competitor

to compete by using the teachings of an expired patent.

Moreover, even after conducting all of the investigations

outlined above and incurring the many necessary in-

vestments of time and money, a potential competitor

still may face a jury trial, possibly an injunction order to

withdraw the product from the market, and possibly a

judgment for unknown damages.

Realization of all the benefits of free competition re-

quires the certainty that one can copy the teachings of

an expired patent or patented device. This Court has

held that “[wJhere an item in general circulation is

unprotected by patent, ‘rjeproduction of a functional

attribute is legitimate competitive activity. Bonito

Boats, 489 U.S. at 164. As Professor McCarthy has

noted:

The first principle of unfair competition law is

that everything that is not protected by an intel-

lectual property right is free to copy. In fact,

copying is an essential part of the whole fabric of

an economic system of free competition. Thus, the

act of “copying,” far from being intrinsically im-

proper, is essential and should be lauded and

encouraged, not condemned. There is absolutely

nothing legally or morally reprehensible about

exact copying of things in the public domain.

— —

J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS

AND UNFAIR COMPETITION § 23:122, at 23-270 (4th ed.

1997) (citations omitted).

Petitioner’s actions in this case are consonant with the

free competition system we enjoy in this country. As the

Sixth Circuit found, “[k]nowing that the technology pro-

tected by a patent becomes available to the public after

the patent expires, TrafFix owner and president Jack

Kulp sent an MDI sign to Korea to be reverse engi-

neered into a product he could sell in competition with

MDI.” Marketing Displays, Inc. v. TrafFix Devices, Inc.,

200 F.3d 929, 932 (6th Cir. 1999), cert. granted, 120

S. Ct. 2715 (2000). In the wake of the Sixth Circuit

opinion, competitors such as Petitioner will be signifi-

cantly hampered and deterred from copying the product

and features in an expired patent for fear of running

afoul of the Lanham Act. This result runs contrary to

this Court’s holding in Singer and the Constitution’s

limited Times bargain.

When one lawfully can copy a commercially-proven

device it enhances competition. Other designs that have

not been commercially proven and that might become

protected by an applied for, but unissued patent, are not

equally attractive alternatives. When one is unsure

about whether it is legal to copy a proven device, despite

it being the subject of an expired patent, free and fair

competition, the lifeblood of the American economic

system, is severely hampered.

CONCLUSION

The Amicus respectfully asks this Court to reverse the

decision below, and hold that trade dress protection does

not extend to a product formerly covered by a patent.

Respectfully submitted,