The Apple/Samsung patent case was arguably the most important design event of 2012. Not just because it gave a measureable value to design patents and the role of intellectual property in user experience design, but because of its visibility and potential impact on design processes.
Over the last couple of weeks, two important thought pieces were published that bring attention to this impact.
In his excellent blog, Foss Patents, Florian Mueller discusses the Apple '915 "pinch-to-zoom" patent. Mueller gets to the heart of the matter when he considers non-infringing alternatives (i.e. Samsung's) to this interaction:
"there's no question that one can work around that claim limitation, like any claim limitation of any given patent, in a legal sense, and there's also no question that the '915 patent doesn't cover all scrolling and all pinching operations, but the question is what price one has to pay for non-infringement in terms of a degradation of the user experience. Is it intuitive?"
"But the question is whether the pinch-to-zoom gesture that Apple has made so popular that it's commonly expected, and instinctively performed, by users can be implemented without infringing the '915 patent or adversely affecting the user experience."
Mueller is implying (perhaps not intentionally) that effective interaction design, requires awareness of what interactions are infringing and the consequences of designing around them. Taking this a step further, we might consider whether the value of infringing, or rather licensing to avoid infringement, provides a greater user experience than developing a non-infringing alternative. I posit that it is extremely rare for interaction designers to think in these terms when deciding a design direction.
Charles Mauro gets much more direct and specific about the implications of intellectual property on interaction design in his comprehensive analysis of the Apple v. Samsung case. Mauro starts out by providing a clear review of the case and the issues at stake, but it is his synthesis and conlusions that are most relevant here. Mauro argues that it was not the individual design patent, utility patent or trademarks that were at stake, but the collection of Apple intellectual property which collectively define the total user experience:
"The asserted Apple patents covered the look of the iPhone, the style of the screen-based interface, design of the icons and related screens, and some of the essential gesture-based interaction behaviors of the iPhone product. The sum of these patents covered essentially the iPhone you may or may not have in your hand from the standpoint of what you cognitively experience when you use the device. In retrospect this was a brilliant strategy because it gave Apple the opportunity to secure (conceptually) protections well beyond those that accrue to any single patent related to iPhone technology. This was likely an essential legal strategy of Apple since it is the Total User Experience (TUX) of the iPhone that drives commercial success, not any individual feature or function as presented in a single patent asserted."
Consequently, Mauro advises, intellectual property development needs to focus broadly on the overall user experience, not narrowly on individual design elements and functions:
" IP practitioners should make use of all available forms of IP protection including design patents, utility patents, copyright, trademark and in litigation, trade dress, to create an interlocking set of protections that cover the look, feel and function of your products and services"
Again, I would argue that when designers are creating a product design strategy, patents are not at top of mind.
Will Design Adapt?
After the Apple v. Samsung case, everyone seems to get the importance of interaction design to intellectual property law. But are we seeing the importance of intellectual property law in the design process? Both Mueller and Mauro understand the symbiosis, even if the design community generally does not.
Despite the high importance of patents to the design process, the area still receives relatively little attention among the design community. For example, the program for the industry-leading Interaction13 conference does not include a single presentation on the topic of patents or intellectual property, despite the huge visibility and importance of the Apple v. Samsung case.
For those designers, who are interested in designing effectively with patents, here are three key steps to getting started
- Gain an understanding of the fundamentals of patents. There are various resources for this, and I have yet to find a single one that I strongly recommend, so please provide your suggestions in the comments. Keep in mind this is not a one-time read and learn activity. Patents are a dynamic area and it is important to stay informed in an ongoing manner. A couple of recent recommendations include a section run in the NYTimes earlier this year (recommended for interaction designers) and a series on Core 77 about design patents (recommended for industrial designers). Also, PatentlyO is a blog/feed for daily updates on patent news - not necessarily always relevant for a designer, but an effective way to stay in the loop.
- Read the existing patents in your area of design and track new patent applications going forward. I personally like Arch Patent which is a recent newcomer and has some nice search and filtering tools, but of course there's always Google's patent search.
- Integrate patent review as part of your design process. In many organizations this is done after the creative process, to check for potential infringment. I advocate also reviewing patents before and during the creative process so that designers understand the constraints and opportunities available. Just as designers advocate understanding user needs and business goals in order to design effectively, they should also embrace knowing the intellectual property space.
Update 17 Dec 2012 - Matthew Smith has posted an overview of design patents that can serve as a reference and introduction to the legal details (courtesy of PatentlyO).