The Vessel Hull Design Protection Act (in the U.S.)

[Stephen Ditmore]

I think it's time a thread was started concerning the current state of intellectual property protection for hull designs. My focus will be the U.S., but I welcome discussion of this topic as it relates to other nations and to international commerce.

The following report was recently published:
www.copyright.gov/reports/vhdpa-report.pdf

My issue with it is that the panel included only representatives of boat manufacturers, not independent designers. Also, the relavant pages at www.copyright.gov are more difficult to locate than the report seems to suggest, as is a page for the "Public Information Office" of the Copyright Office.

This page might be broadly relavant: http://www.copyright.gov/circs/circ41.html
But I have not yet located a reference to the VHDPA or Chapter 13.

[shu]

I didn't read the entire report but noticed this item in the beginning: That design protection exists for 10 years and is only applicable to designs for which an actual hull has been built. Designs which only exist in models or on paper are not covered. I am new to the field of design, but this sounds totally bogus. What is to stop a unscrupulous (sp?) builder from hijacking a design and then getting copyright protection for the design once he has built the first hull?

[Stephen Ditmore]

This appears to be the VHDPA home page: www.copyright.gov/vessels/

Manufacturers apparently felt measures were needed to prevent the splashing of lines, but patent and copyright law has always been about protecting the inventor/author/artist. I agree with Shu that this law does not appear to offer protection for independent designers shopping their ideas. We might think about advocating for ourselves by submitting comments of our own.

This is the public comment notice from last year: www.copyright.gov/fedreg/2003/68fr7350.html. While it's now out of date the contact information might still be useful. Our ultimate recourse is to the House & Senate Judiciary Comittees and our own elected represnstatives, of course.

Does anyone think the VHDPA (17 USC Chapter 13) DOES provide protection to independent designers? If not, is protection available under other copyright provisions? I had hoped it might be under provisions available to architects as discussed at www.copyright.gov/circs/circ41.html, but I now see:

[quote]
===========================================
Works Excluded
-----------------
The following works cannot be registered:

• Structures other than buildings, such as bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats.
===========================================

I was mistaken concerning the participation of any independent designer. Reading more closely I saw that a Mr. Paul Pollinger of Pollinger & Co submitted comments. This is the same Paul Pollinger who presented a paper entitled "Ocean/river Hull Design Concept" at www.waterways-rd.gov/techsessions.htm. I just spoke with Mr. Pollinger, and while I'm hesitant to quote him or characterize our conversation I'm hopeful he might post a comment here at some point.

Doesn't a design patent offer the best protection for a new design?

[Stephen Ditmore]

I think a utility patent offers the best protection where applicable. A design patent is a heck of a lot simpler to get, though, and if the originality of a design is visually obvious a design patent should protect it against exact reproduction. The difference as I understand it is that a utility patent protects functional inventions while a design patent, in the main, protects "trade dress" (in a more global, comprehensive way than trademark).

Having said that, I think there's an appropriate role for copyright. One of the questions asked in the report on the VHDPA is whether the ceation of new designs has been encouraged. If that's the goal, protection should exist from the moment of creation as it does in other areas of copyright. As it stands there's an incentive to be secrative, but (as in science) development often involves the free exchange of ideas. It would be of great benefit to (nearly) everyone if people could publish, whether in an open forum like this or by submitting papers to magazines or symposia, without fearing they may not receive proper credit or may lose rights to their original work. For a prolific designer submitting a range of ideas to builders or selling catalogs of plans it would certainly be useful not to have to obtain a patent for each design in order to enjoy at least some measure of protection.

That's my opinion. Is it worth turning into a letter to someone in government?

[duluthboats]

Stephen,

I agree with you and I have seen these concerns filter into many of the threads. The big question is how do you determine what is uniquely yours and not just an extension of someone else’s work. Few individuals have the resources to defend their property in court.

Gary

As holder of two utility patents in vessel design, with others rejected, I would like to note that it is probably impossible to get a utility patent on any but the most radical design innovations. Note also that the claim of a utility patent is in words, not pictures, so the design innovation has to be describable in terms of text.

In addition, a utility patent is only granted to developments not obvious to a skilled practitioner of the art.

These two tests pretty much eliminate just hull form shape modifications as patentable.

I would also be interested in the mechanism for challenging design shape innovations based on prior art for the anti-splash act.

Note too though that vessel design documents can also be protected based on trade secret, which is in turn a contractual matter, provided appropriate language is included on the drawings or in material transmitting them.