A verdict has been handed down in the Chapterhouse Vs GamesWorkshop case. By the jury at least. Among the things Chapterhouse was ruled as using fairly was the SHAPE of the shoulder pad. The public is still waiting for the official judge's ruling but it looks like after market shoulder pads are legal within a certain context. Obviously this ruling will be appealed by Games Workshop but to what extent the jury decision will be changed is questionable.
What this means is that the shape of the shoulder pad is not a protected sculptural element according to American law. This does not make the icons for space marine chapters unprotected. Custom chapter icons on traditional shoulder pad shapes are legally acceptable. I have yet to decide if I will begin moving my own custom shoulder pad designs onto shapeways to be sold. At this time I believe it prudent to wait for the appeals court to decide before I do anything.
Also I won't lie, this decision makes me quite happy. GamesWorkshop lost a portion of their claims but Chapterhouse didn't lose all theirs. In the long run the decision has laid a foundation for future bits production which can be followed by designers such as myself. I look forward to seeing if this creates a more balanced market for miniatures or if GW responds by trademarking models before they publish a codex.