are we burying our heads in the sand? exploring issues around intellectual property rights in ux
TRANSCRIPT
“We don’t worry about design elements in our products unless someone raises it as an issue.
It hasn’t happened yet!”
Product Manager, Tessella (InternaConal AnalyCcs So:ware Company)
Sound familiar?
Sound familiar?
“We wait unCl there is a problem to invesCgate.
I don’t know what the law or our rights are. There is no clear
informaCon provided by our company.”
Editor, Digital Media Team
“A friend of mine had a patent & someone bought exclusive rights to it for $30,000.
The aim of the buyer was to use this patent to sue other companies that were operaCng in violaCon of it. The reality is, if a company has the patent you don’t have freedom-‐to-‐
operate!”
Dr. Dominic Clark, EMBL-‐EBI
Troll experience (not UX)
Direct quotes from EPO
“Under the European Patent ConvenCon, GUI designs or UX techniques are NOT patentable. This also applies to most business methods. This is the reason that the famous "1-‐click" patent that Amazon filed in the US cannot obtain patent protecCon in Europe.
Director Info. Services Processing European Patent Office, The Netherlands
“Designs can be protected through obtaining a registered community design and/or trademark, if they fulfil the condiCons. In Europe these are granted by the Office for HarmonizaCon in the Internal Market (OHIM)”
OHIM: h_p://oami.europa.eu
Moreover…
User interface design has: – non-‐existent legislaCon in Europe – doubjul* base of legislaCon in USA
* If Apple Inc. struggles to win in an IP ba_le then it means it’s hard to get water-‐Cght protecCon for an “experience” or “feel”
Example – new gesture
Use of gesture to trigger an acCon ✗ Not patentable in Europe & rest of world ? Possibly design patent in USA
Ability of sensor to detect new gesture ✓ Patentable
Patents may be granted for business models and so:ware
Patents are NOT granted for methods, business methods nor so:ware
Design patents NO DESIGN PATENTS An interface design, logo or visual idenCty
can be protected via OHIM. If a trademark/RCD is infringed proceedings are not as heavy as per patents, & happen
in the country of infringement.
‘AngloSaxon style’ case law for IP (based on past precedents)
‘European-‐style’ strict definiCons for patentability (novel, pracCcable,
immediate effect, etc)
Both have IP laws defined before computers so have not kept pace with suitable legal instruments & Cmescales.
Quiz quesCon: What does UX have in common
with pre_y plants?
Flickr: MarCn LaBar
Answer: Design patents!
USA is a special case so…
“If you are planning to have market share in USA, try patenCng to protect interfaces as a “design patent” with USPTO, but this protecCon applies only in USA not in Japan, Korean or anywhere else. And even if you get a design patent it is doubjul to stand
up even in USA.”
Director Info. Services Processing European Patent Office, The Netherlands
USPTO and GUI Design Patents
USA Patent and Trademark Office
has “design days” h_p://www.uspto.gov/about/contacts/phone_directory/pat_tech/designday.jsp
So what are the IP opCons in Europe?
• Patents protect technical invenCons in all fields of technology
• Designs specify how products look (ie. industrial design)
• Trade marks signal the origin of products to consumers
• Copyright relates to arCsCc creaCons, such as books, music, painCngs, sculptures and films
Patents
New (absolutely novel)
InvenCve step
Industrial applicaCon Sufficient disclosure (to person skilled
in the art)
Trade Mark
‘any signs capable of being represented graphically, parCcularly words, including personal names, designs, le_ers, numerals, the shape of goods or of their packaging, provided that such signs are capable of disCnguishing the goods or services of one undertaking from those of other undertakings.' ArCcle 2, DirecCve 2008/95/EC of the European Parliament and of the Council
Designs
• 'The appearance of the whole or a part of a product resulCng from the features of, in parCcular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentaCon'.
ArCcle 3 of the Design RegulaCon
• Almost any industrial or handicra: item can be eligible for design protecCon (except for computer programs)
Try these steps...
• Gain an understanding of patents – InteracCve videos & online mini tours (see later slides)
• Read some UX-‐related patents yourself • Review patents during your creaCve process
Understand IP yourself
EPO’s InteracCve Patent Info. Tour
h_p://applicaCon.epo.org/wbt/pi-‐tour/tour.php
OHIM videos to explain concepts/fees e.g. Trademarks: h_ps://oami.europa.eu/ohimportal/en/trade-‐marks
Freedom-‐to-‐operate?
• A clearance opinion is a legal opinion provided by one or more patent a_orneys as to whether a given product or process infringes the claims of one or more issued patents or pending patent applicaCons.
• Clearance opinions may be done in combinaCon with a "validity and enforceability" opinion. A validity and enforceability opinion is a legal opinion as to whether a given patent is valid and/or enforceable.
• A validity opinion is a legal opinion or le_er in which a patent a_orney or patent agent analyzes an issued patent and provides an opinion on how a court might rule on its validity or enforceability
• Validity opinions are o:en sought before liCgaCon related to a patent.
• The average cost of a validity opinion (according to one 2007 survey) is over $15,000, with an infringement analysis adding an addiConal $13,000.
Wikipedia quote
ArCcle on PulseUX Blog
h_p://www.mauronewmedia.com/blog/apple-‐v-‐samsung-‐implicaCons-‐for-‐product-‐design-‐user-‐interface-‐ux-‐design-‐so:ware-‐development-‐and-‐the-‐future-‐of-‐high-‐technology-‐consumer-‐products/