Are we burying our heads in the sand? Exploring issues around intellectual property rights in UX

My name is Paula de Matos
I live in Cambridge
I am an Independent
UX Analyst

@JenniferCham
UX Researcher & Designer
EMBL-EBI

Welcome
to
this
‘think
tank’
Flickr:
Andrew
Becra:

Imagine...
You
are
working
for
a
small
web-‐applicaCon
start-‐up…

Sound
familiar?
“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?
“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

What
about
patent
trolls?
Flickr:
crises_crs

Troll
experience
(not
UX)
“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

What
about
you?
Flickr:
Eden,
Janine
and
Jim

Are
you
burying
your
head
in
the
sand?
Flickr:
U.S.
Army

Flickr:
JusCn
Lowery
What
is
the
way
forward?

What
are
the
barriers
for
the
UX
community?
Flickr:
visualpun.ch

Do
you
consider
the
importance
of
IP
in
your
design
process?

Most
UX
or
digital
design
conferences
do
not
include
anything
about
IP,
why?

Lobbying?
Do
we
need/want
be_er
legal
instruments
to
protect
UX
“invenCons”/”designs”?

But
does
the
troll
threat
apply
to
UX…?

In
Europe
so:ware
&
methods
are
NOT
patentable
“Don’t
panic!”

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.
“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)”
Director
Info.
Services
Processing
European
Patent
Office,
The
Netherlands
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!

Example
of
US
“Design
Patents”

The
famous:
“Amazon
1-‐click”

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)

What
cannot
be
patented
in
Europe?
(contrary
to
morality)

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

Includes
mini
videos,
“did
you
know?”
trivia,
and
quizzes

OHIM
videos
to
explain
concepts/fees
e.g.
Designs:
h_ps://oami.europa.eu/ohimportal/en/designs

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

OHIM
Learning
Portal
h_p://oami.europa.eu/knowledge/

h_p://patentabsurdity.com/watch.html

Nice
blog
on
all
things
“patent”
h_p://patentlyo.com/

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/

Are we burying our heads in the sand? Exploring issues around intellectual property rights in UX

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