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For many years, many courts have been confused about the question of whether trade dress protection under the Lanham Act can be applied to product configuration in an expired utility patent. Some courts insisted that if the product configuration is nonfunctional, it could obtain trade dress protection. While the Tenth Circuit held that if the product configuration comprising a “significant inventive component” of a previous utility patent, then trade dresses protection is not available to it, no need to consider its functionality. 1 After that, the district court refused to use the functionality analysis, a bright line test was given by the district court that allowing, “slavish copying” of the “best mode” of a patent. The courts have been spilt with regard to this issue. This essay is trying to present the limited trade dress protection can be given for production configuration in an expired utility patent, so the Patent Act and the Lanham Act can be reconciled to some extent. Keywords—trade dress protection; product configuration; Patent Act; Lanham Act I. THE PATENT ACT AND LANHAM ACT A. The Policies under the Patent Act In order to obtain a utility patent, the invention must meet three conditions: novelty, utility and nonobviousness. The novelty requirement means that any knowledge that is already available to the public cannot take into consideration for the patent protection. The second requirement, utility, indicates that a patentable invention must be the one that can fulfill the intended function and meanwhile has the ability to produce satisfactory goods that are make a contribution to the society. The finally requirement helps to ensure that even a novel invention cannot seek for federal patent protection if it falls within the existing technology. From the filing date of the application, a utility patent is granted for twenty years. Once the patent is granted, the information around the patent is available to the public. In fact, the positive property rights such as the right to make, to use, or to sell the patented invention 1 Vornado Air Circulat ion Sys., Inc. v. Duracraft Corp., 58 F.3d 1498, 1500, 35 U.S.P.Q.2d (BNA) 1332, 1333 (10th Cir. 1995). 2 Thomas & Betts Corp. v. Panduit Corp., 65 F.3d 654, 663-64 (7th Cir.

The Tension between the Patent Act and the Lanham Act in the US -- Taking the Trade Dress Protection for Product Configuration for Example