Apple's $1B damage award (now being retried) caught the attention of anyone awake in the patent community about the importance of design patents. Much less understood was how to analyze design patent protection of graphical user interfaces (GUIs). The problem is GUIs raise a difficult line drawing exercise between ornamental elements (appearance) that design patents are intended to protect and functional elements that are not.
Professor Risch's Functionality and Graphical User Interface Design Patents, to be published in the Stanford Technology Law Review, is a timely article discussing among other things the design patent relating to the Apple iPhone home page and the line drawing problem.
Professor Risch says the article answers three questions:
"1. Aren’t GUIs something that should be protected by copyright only? Why should there be a patent? The answer is relatively simple: the law has, since 1870, contemplated dual protection. The article traces the history to explain why the law could have evolved differently, but simply did not.
2. Display screens change, both before and after sale. How can someone patent an ephemeral screen design? It also turns out that ephemeral designs have been protected for some time. Even so, the article proposes some limitations on the protection of GUIs that should address the special nature of GUI design patents.
3. There are many differences between Apple’s patent and Samsung’s product. How can Apple own the idea of square icons in a grid with a dock bar at the bottom? This last question is the most intractable: determining when a design is infringing, and the role that functionality should play in that consideration. The bulk of the article is dedicated to answering this question.
To answer the third question, the article draws on lessons from prior copyright disputes about GUIs. It first suggests that courts must act as gatekeepers, rather than allowing juries to determine which elements to disregard as functional. It then develops economic factors that can help the court determine whether a design element is functional, and whether to allow reuse by a competing program."
I am still reading it, but want to pass it along as it should give insight to anyone considering design patent protection of GUIs.
Copyright © 2013 Robert Moll. All rights reserved.
