It is widely observed that technological innovations are covered by many patents. To say that this complexity for IP negotiations, licensing and litigation outweighs the beneifts of patents is Tim’s argument. This might make sense with fashion copyrights, but with other fields, his approach does not work. It leads him to argue that mere claim construction (high-level functional descriptions) found in software patents is sufficient justification to eliminate patents for software altogether.

The Copyright Office reference cited by Tim notes:“The Office has no expertise in the design of vessels and cannot judge what is “original” in a vessel hull design. Moreover, the statute offers no clear guidance that would assist the Office in judging what is “attractive or distinctive” to the public in a vessel hull design.. In terms of fashion design would a new floral print with a four-petal design be sufficiently different from an existing floral print of five petals to constitute an original design? I bet the four-petal copyright holder would say no, whereas the five-petal designer would say that it is substantially different in attractiveness and would constitute original work.

The potential to be endlessly embroiled in lawsuits over subtle and subjective interpretations of what constitutes “new” hardly fosters innovation. Furthermore, from the perspective of an innovator, with limited financial resources, the threat of legal action could constitute a significant barrier to entering a market.