This article summarises the issues in conducting corporate ethnographic research in rural locations covering logistics to research dynamics. Rural communities are far from homogeneous.
Over the last decade I've seen an increasing number of multinationals target highly financially constrained consumers in countries like India, China, Brazil, Nigeria and Rwanda (where these pictures were taken) reflecting both a wider awareness and appreciation of business opportunities of this market segment. The very particular ethical issues of working in financially constrained communities are covered in this essay, and suffice it to say, these consumers are arguably some of the most demanding consumers on the planet. Given that these countries have significant agrarian populations, how does ethnographic, corporate rural research differ from similar contextual research conducted in urban settings?
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A "rural" community spans a significantly wide diversity of peoples, cultures, faiths and ethnicities. The infrastructure can vary considerably from dirt roads to paved, electricity to off-grid, cell towers and data connectivity, water from jerry cans or the mains. A single farming community can encompass a wide range of incomes from subsistence living through to satellite TVs and four-wheel drives. The size of farms; the crops that are planted, the livestock that is tended; the extent to which agricultural or husbandry expertise is available; whether it has been a good season; the timing of the next harvest; flows of knowledge and income relating to the level of urban or international migration (especially near border areas); access to credit; can all have an impact on who the research team will engage with, and how the research will be conducted.
The first issues arise during the project planning and relate to logistics.
Assuming the country has already been selected, how to choose one rural location over another?
Tapping the knowledge of organisations that already operate on the ground can help feel out the nuances of different geographic regions and can provide invaluable advise on access, introductions and existing authority structures and provide a sense of who is already doing what on the ground. An organisation's willingness to share often includes an element of quid quo pro with the promise of some form of share back at a later date—this spirit is not always apparent in commercial projects.
Before the team arrives, Google maps and its ilk are good for remote sensing a country to understand the type of roads (asphalted, dirt) the dynamics of a city, town or village right down to the type and density of neighbourhoods, homes, communities, farms. Backed up by analogous on-the-ground experience satellite images can be very effective at cross-checking other data sources. Commercially available photos from satellites or planes can be obtained if the team requires something specific, including very high resolution imagery. Having a sense of the terrain helps focus the research planning and provides an early taste of 'being there', especially useful in acclimatising team members that haven't travelled to the region.
A frog team spent a week in Cairo for client research, workshops and keynotes shortly after the revolution. Our team of six worked out of a downtown hotel, syncing with three local guides over breakfast, before hitting the streets. It's good to have time to calibrate to the city, especially one that has gone through so much disruptive change—there's freedom in the air, and most people that we've spoken to recognise that the hard work in building what-next is yet to come. Tahrir Square is alive with the sounds of debate, face painted kids, and the detritus of protest.
A critical aspect of any project is the ability to set and manage expectations, which is often framed in terms of clients wants and needs. The week in Cairo comes with another set of expectation setting—helping colleagues and family understand what the team is up to, and appreciate that the news headlines represents a tiny sliver of what is going on the ground. I'm not surprised at the number of emails expressing concern, and I know how easily events in a far away land can spiral into a cycle of rumours that elevate danger and risk.
A long time ago, I realized that you should never ask the question to someone in the organisation if you're not willing to listen to and act on the answer. The consequences of questions about security in any organisation is that someone's job is (ostensibly) on the line if things turn south—and organisations are inherently risk averse. This is a problem if the decision makers don't understand the risks on the ground—hence the need to be proactive about setting the tone of the conversation.
How do you feel when you're asked to do travel somewhere interesting but that carries a slightly higher risk of injury, kidnap or death?
I've run a number of studies to "lively" places, that carry with them a different risk profile than one normally encounters on corporate research. In each case I've needed to pull together a team that can stand up to the technical, physical and emotional rigours of the work. This is what I learned about "the ask".
The practical aspects of planning a short (~1 month) study in higher risk environments are relatively straightforward to pull together, but many are less-unprepared for the emotional highs and lows before, during and after the field study.
Before Going In-field
1. Elation at being asked, at the potential. Nobody says no to a travel adventure.
2. Realization as information is gathered, newspaper headlines are scanned the enormity of perceived risks sink in, the worst-case scenarios mentally play out. The lows are amplified by how it is communicated to peers/friends/family during stage (1). This is when the person who initially said yes changes their mind.
3. Normalization: more nuanced media/opinions are gathered, conversations with people in the know, on the ground, a better understanding of geography, place, the risk is put into perspective, bad headlines no-longer trigger deep lows. the researcher comes to terms with the idea of what it means to be there.
4. Occasional panic attacks: things that sneak up on you: a misread headline; an idle thought; a sense of what could be lost.
This is the second article in a series examining the potential of resilient design to improve the way the world works. Join designers, brand strategists, architects, futurists, experts and entrepreneurs at Compostmodern13 to delve more deeply into strategies of sustainablity and design.
We've all been there: it's another late night in the studio, and you've got hours of pixel-pushing and deck-polishing ahead. Your social life, if it exists, is under duress. The cramp in your mousing hand makes you wonder if it really is time to see that doctor.
Meanwhile your mind wanders from the task at hand to what you can do—what you can change about your "situation"—to close the gap between the seeming pointlessness of how you earn your living and the realization that your time and energy could be better spent doing something (anything!) more meaningful.
Like your brother who joined the Peace Corps in India. Or the industrial designer you read about who designed a new clean water system for a village in Tanzania. The architect who took a 6-month leave of absence from his job to build relief housing in Haiti.
It could be mere escapism to indulge such humanitarian fantasies but I think there's more to it, especially for designers. It's in our professional DNA to do stuff, to make things—and if we were trained well—to solve problems and have real impact on people's lives. Our hands feel tied when we're not putting them to good use.
Human need is everywhere
Humanitarian work shouldn't require quitting your job, uprooting your life and moving to another community. The eye of the storm for social injustice isn't always half way across the world—it's often right under your nose in the form of an urban food desert, children stuck in a cycle of poverty, a family who lives in your back alley.
Over the last 5-7 years, we've witnessed an explosion of programs dedicated to applying design methods to humanitarian issues in the developing world. Some have spun off as nonprofits; others are embedded in top design firms, universities or government. Philanthropic foundations are expanding their grant portfolios by underwriting innovative, designer-led initiatives that meet their programmatic interests. Both the design and mainstream media have caught on, helping to fuel more attention to the value of designers working in the developing world—amounting to more funding, more programs, and more opportunities.
Frog Senior Design Researcher Cara Silver conducted field research in Afghanistan to investigate topics around risk and savings and their intersection with mobile banking. She worked with a nimble team including Executive Creative Director of Global Insights Jan Chipchase and Chief Creative Officer Mark Rolston, and with support from the Institute for Money, Technology, and Financial Inclusion.
A mixed-gender team of three researchers and four local guide-fixers conducted mobile finance research in Afghanistan over two weeks in December 2012. The goal was to investigate topics around risk and savings and their intersection with mobile banking. Discussing money—and who in the family influences spending—was a key question, and one that required the team to both play with and against the often siloed gender roles in the region. Navigating these gender dynamics was top of mind for all members of the team to both ensure safety and gain access to both sides of the story.
The team planned to spend four days in Herat and the remainder in Kabul. These locations were chosen as being both culturally distinct and sufficiently secure. As the economic center of modern Afghanistan, Kabul carries a large international influence, both government affiliated and independent, and harbors the security tensions to match. It is seen as a safe zone for those associated with government work, like the Afghan National Army (ANA) and Afghan National Police (ANP), who often settle their families in the city and return to the provinces to work. Herat lies in the west of Afghanistan and is less than a two hour drive from the Iranian border. Traditionally, a high volume of migrant labor has traveled to Iran to earn money to send back to families in Afghanistan. This cross-border human traffic brings with it both cultural, political and commercial influence, reflected in everything from the goods on store shelves to investments in local infrastructure, and to the dress and behavior of women outside the home.
Risk is an issue in every country where we run research (mostly in the form of vehicle accidents), but it is elevated in Afghanistan, where there are occasional attacks, suicide bombings, and kidnappings. The challenge for the team in determining risk—and developing strategies and tactics to mitigate that risk—was in looking beyond the dramatic headlines and the established and stringent security protocols for organizations that need to operate on the ground for extended periods of time, gaps in our own knowledge, and processing events on the ground as they unfold.
It is not our purpose to overstate the more adventurous aspects of this research and we recognize that there are people living and working in Afghanistan under far, far riskier conditions, not least the Afghans themselves. With that in mind, we hope that some of you will find this discussion useful.
The perception of risk varies from context to context over the course of the research day. The general sense on the ground (and from Jan, who has researched in Afghanistan multiple times) was that the security situation has progressively become worse. Several of our translators reinforced this impression, saying, "2010 was the best year in recent history. Now, with the news that the United States will pull out, people have less hope. People stopped investing in the future. Construction has slowed, and families are pulling daughters out of school. Things are getting worse."
The cornerstone of our research strategy was to maintain a low profile: with no security detail to draw attention, travelling in local taxis (rather than SUVs normally used by NGOs and contractors). We used motorcycles on photo-shoot days, when we needed to cover a broad swath of the cities and the photographer/researcher needed to get in and out at speed—with the researcher in near-to-local dress that would survive the squint test. The team avoided buildings, people and convoys that were military or military-contractor related, when these were known (it is not always apparent). The risk from IEDs, or improvised explosive devices, was considered low because of the unpredictable nature of our routes, the use of local transport, and limited cues suggesting that foreigners were riding inside. However, in today's age it is relatively easy to look up background information about an individual, including his or her employer, job title, and salary range, assuming they are transparent about their employer, i.e. through business cards, and travelling on their own passport. Our goal was to be not particularly interesting targets.
In the coming week we'll be publishing posts by frog's researchers drawing on their experience of working for commercial and non-commercial clients in some of the less predictable places of the world: Afghanistan; post-revolution Egypt; Rwanda; Burundi; Brazil, Ethiopia; South Sudan; India and China—the list of countries is extensive, the global insights team ratchet up more than 150 projects a year across industries— financial inclusion, healthcare, automotive, fast moving consumer goods.
In this series, the posts are written by Jan Chipchase, Cara Silver and Mark Rolston to coincide with the publication of their new report: In The Hands of God: A Study of Risk and Savings in Afghanistan that explored issues related to the design and adoption of mobile money services. As you might expect from a country at war, Afghanistan is very much an outlier, but as such it can reveal behaviours that are far more difficult to spot elsewhere in much the same way that lead users are different from mainstream users. It's a journey that revealed the best and worst of humanity: from the family bonds, trust, betrayal and even an attempted kidnapping.
This is the first article in a series examining the potential of resilient design to improve the way the world works. Join designers, brand strategists, architects, futurists, experts and entrepreneurs at Compostmodern13 to delve more deeply into strategies of sustainablity and design.
When I began my journey to understand global overfishing, I knew that it was a sprawling and complex tangle of intertwining problems touching the spheres of policy, commerce, environment and livelihood. Now, almost five years in, I see its complexity through the stories of people I've met who live in that tangle: The New England fisherman whose house was firebombed when he dared to embrace policy reform. The shark researcher who once used a tag he'd put on a shark's fin to record its migration pattern to then hunt the poacher who finned the shark and kept the device as a souvenir. The old Chinese fish farmer who, in a trick to trump Pavlov, proudly rang a bell to bring hundreds of tilapia called by its vibration to the surface of a pond to feed.
Each of the players in this system has an incredibly personal stake in how we humans choose to rethink the way we hunt, eat and protect fish. Given that 1 billion people in the world rely on fish as their primary protein, and that 85 percent of the world's fisheries are currently harvested at or beyond their limits, the cost of failing is unthinkable.
When we were first asked by The David and Lucile Packard Foundation to uncover new market-driven solutions to encouraging responsible fish harvesting, we did not set out to find one solution for all players. But because we intended to design for a system, we couldn't look for solutions for just one player or user. We had to find openings—stuck points—that once resolved, might prove the giving knot to unwind the tangle. We had to figure out how to design for many.
At every stage of our work—through four distinct project teams, three sponsoring organizations and multiple iterations—we made some right calls and some mistakes. Here's a brief look at some of the insights we gleaned along that path.
Who's the user?
Our process included two components: 1) pattern recognition to identify which problems in the system received ample attention from existing strategies and which were unaddressed, and 2) a "design thinking" process that included sending teams of anthropologists into the field to observe.
The first phase of that process identified the middle of the seafood supply chain as a ripe area to explore; most solutions targeted fishermen or retailers at either end of the supply chain, leaving processors and distributors out of the conversation. The next phase was initially puzzling. Given a target as broad as the middle of a global supply chain, what should we observe? Who was our user? What did we need to see to guide our design? We thrashed about for a bit and sought guidance from some of the most experienced practitioners in the design world. They counseled our team to, "go with your gut."
Since I have the gut of a trained journalist, my instincts told me to go where the conflict was. I offered to my co-lead in the project that the front line of our problem seemed to be transactions—whenever fish traded hands. What did those conversations and negotiations look like? What unspoken context shaped those outcomes? We ultimately dispatched teams of anthropologists to eight sites in four countries, looking for examples of distributors and processors buying and selling fish?
In my travels, I've seen a lot of crap for sale. Every point of interest has at least one spot that is crammed with some sort of object to entice you, the visitor, to spend money. Invariably, these objects are products. That is...no one is going to try to sell you a bag of Cambodian cotton while you visit a Cambodian temple, expecting you to spin it into yarn and then weave it yourself. They want to sell you a T-shirt, a scarf, a bag...something with immediate, usable value. They have taken the time to turn a material, cotton, into a product—T-shirts. Preferably a T-shirt that announces the awesomeness of your visit, such that you are glad to part with your money.
But many merchants sell their wares in the equivalent of bales and sacks, turning their products back into materials. What I've seen is that products become...well...commoditized. Travelers become numb to them, and there is much, much more supply than demand. What travelers really crave are experiences. Authentic interactions, a great story, a moment with a local; those are the things that travelers really will take home. Experiences can be made into products, of course. Tours, great hotels and restaurants take products and experiences and serve them to consumers in a (hopefully) reliable way.
But the level of entry to these experiences is hard for many locals to achieve. Restaurants take capital, planning and, often, government connections. But with some education, I think there are many ways for locals to enhance their product offerings to differentiate them and improve their connection with their markets. I've seen a few in my wanderings in the last few months. I hope that they can help define the porous boundaries between material, products and services. Exploring these borders can help us all think about the work we do and the services we offer.
While in Bagan, Myanmar, I saw several temples plazas that housed seas of cotton fabric with beautiful, intricate sand paintings. I stopped to admire them...some are based on the amazing designs slowing fading into invisibility on the interior temple walls. Here they are, in bright relief, remade for us! Others are trite design motifs that seem to reappear in various incarnations across many Southeast Asian countries: monks walking in a line with parasols, ladies with pots balanced on their heads. The issue I have, is that while they are putting tremendous effort and skill into their product, their products still look like raw materials. Arrayed across the temple plaza stones, they weigh their fabric down with rocks to keep them from blowing away. Equal thought is not going into the presentation.
I stopped to talk with one of the artists as he gave me his pitch—the sand paintings were durable—you could crumple them in your bag, get them wet even, and they stayed intact. While he spoke, he proceeded to crumple up one of his pieces, and pour water on it! I appreciated that his work might actually make the trip home in my backpack fully intact. On the other hand, I was somehow doubtful all the creases would ever come out. Either way, I feel like his product presentation didn't have the intended effect—I wasn't sold.
Product merchandising is so important...many merchants have a more-is-more approach, stuffing their stalls with products and many multiple versions of products...leaving little to the imagination. Others give their products a bit of room to breathe, and it can have the effect of drawing the eye in, and also elevating the perceived value of the product. Pairing products, or displaying them so I can imagine them in use can be really helpful. While I was walking the side streets of Battambang, Cambodia, I passed this boutique that paired sunglasses with their sweaters.
I felt like the sand artist could take an extra step and help me out—I was going to have to take it home, mat and frame it. They could have some of them framed to help me visualize the right use of his product and guide me towards purchase more easily. It may be a material now—but here it is as a product!
Timelessness, it seems, is a matter of taste: while Dieter Rams' recently-revisited Vitsœ 606 is at the top of my list for furnishings when I eventually settle down, a couple commenters begged to differ. Those of you who prefer the warmer aesthetics of Mid-Century Modern heirlooms are perhaps duly predisposed to the Comprehensive Storage System by George Nelson for Herman Miller.
While the CSS certainly rivals the 606 as a paragon of functional beauty, the Michigan-based MCM manufacturers have long since discontinued the product—it's only mentioned in passing as a 1959 milestone in Herman Miller's company timeline. As such, well-preserved examples command healthy resale prices—from around $4,500 to upwards of twice that—on the secondary market.
More on the Pretzel Chair below...
However, as of the new Millenium (or Century, as it were), the mystique of George Nelson Associates was beginning to dissolve. It turned out that many of the iconic products and graphics to Nelson's name, produced during his 25-year tenure as Design Director of Herman Miller, from 1947–1972, were actually the work of lesser-known and often uncredited designers. Which is not to say that Nelson was a designer himself: he was an architect and writer by training and trade, and he made few, if any, decisions regarding the designs for which he is widely credited (and acclaimed).
Case in point, Chief Designer Irving Harper has only recently been recognized as the creative force behind the long-canonized Ball Clock and Marshmallow Chair, as well as Herman Miller's logo. The chronicle started with Paul Makovsky's seminal profile of Harper for Metropolis back in 2001 and culminates this month with the forthcoming release of Skira/Rizzoli's Irving Harper: Works on Paper, a 12-year effort by Michael Maharam of textile fame to shine light on the unsung genius in his lifetime (the designer is just a few years shy of triple digits).
Seoul, like so many other great cities of East Asia, bustles and buzzes with life, a modern and dynamic metropolis. At night neon signs and giant digital displays battle for attention, advertise everything from the ubiquitous internet cafes (per capital South Korea is the most 'online' nation in the world) to the all night eateries, saunas and singing rooms. Like Japan and China, Korea and the Koreans are a nation of early adopters. Technology exists to be embraced. The latest digital products, software, systems and means of communication are all readily accepted by a culture which now not only adopts technological innovation but is a world player at its leading edge.
It is against this background that I exit the subway system at Seoul's hip, creative district of Jamwondong before ducking off a busy main highway south of Seoul's Han river. I've travelled on a bullet train from Ulsan's National Institute of Science and technology (UNIST), having recently made the move from the leafy suburbs of South London to start a new life at UNIST's School of Design and Human Engineering.
My final destination is Seoul's young, ambitious and rapidly expanding design consultancy SWBK. Founded in 2008, the firm offers an extensive range of design services from IT-based product design to brand consultancy, service design and their Matter & Matter range of fine furniture. SWBK's global design awards speak for themselves (Red Dot, IF, IDEA, GOOD Design...). They have an ambitious, skilled and highly motivated team, whose knowledge and expertise are sought by a growing list of national and international clients.
Their work also extends to the direction of design and cultural exhibitions. One such expo recently organized by SWBK, is the Sulwha Cultural Exhibition in Seoul. It showcases the work of some of Korea's most celebrated craftsmen, artists and designers; from master Bang Chun Woong's display of Korean Ethnic Earthenware (onggi) to Media Artist Yang Min Ha's virtual, interactive installation reinterpreting the process of making onggi through manipulation of digital content via physical, embodied interaction.
In a way SWBK's Sulwha Exhibition is an apt reflection of Korean society more generally. Traditions of the past live cheek by jowl with a modern tech-savvy culture, creating a hybrid mix of embedded traditions within an emergent, dynamic digital culture.
I pick my way towards the SWBK studios and am greeted at the door by co-founder, Sukwoo Lee. Having worked as an industrial designer for Samsung and then at Teague in the United States, Sukwoo returned to his native Korea in 2008 to co-found his consultancy with fellow designer Bongkyu Song.
I've come on a mission: to find out if, within this tech-driven culture, design firms have decided it's time to finally kiss goodbye to dated, low-tech analogue design tools like hand sketching and model making in favour of a fully digital industrial design process.
We sit down to talk and Sukwoo starts by pulling out one of his sketchbooks...
He then produces a tiny handcrafted scale model of his latest chair design and sets it to rest on a page of thumbnail or thinking sketches of the same design.
"I quite like this kind of sketch' Sukwoo explains as we leaf though his work, 'I feel like I'm freer with this kind of quickly made sketch on paper...just hand drawing. From these sketches we often move to these sketch models," he explains.
At this point Sukwoo scuttles off across the studio to return armed with a large plank of balsa wood. "When I touch this wood," he continues, "and I even smell this, it feels much freer than digital work." Sukwoo speaks of an emergent design language that is explored and considered through the use of sketches and scale models. Like the master craftsmen of his Sulwha Cultural Exhibition, there is something honest in the way he describes his expression of form through hand sketching and hand making. From the start, the impression is that these analog processes are integral to SWBK's working culture and design process; to their ability to explore and develop design intentions?
We move on.
"After this," Sukwoo explains, indicating a wall filled with sketches, illustrations and 3D digital models "we start to sketch a little more of the aspects of the form."
At this point Sukwoo describes how CAD tools (Illustrator and Rhino) are employed to test the potential of the concept. "The CAD model is quite rough" he explains, "but gives the team a better idea of proportion and curvature."
Studio Aeroplane hard at work at their Bangkok-based studio. Image courtesy of Studio Aeroplane.
Over the month I spent in Bangkok, I visited three design studios and a fledgling co-working space. All of them were in houses. In New York City, where I have spent my entire creative career, design studios are in spaces...big spaces, long spaces, industrial spaces, tight spaces...but spaces. Office spaces. You make them what you want, but they are fairly raw and often impersonal. Going to a place of design creativity and having it be a home feels very different.
I had been in Bangkok a week and a half, recovering from a month in Myanmar, when I finally met up with some Thai designers. I met Orn from Studio Aeroplane through mutual Facebook friends. Would I be interested in coming to their favorite Isan food stand? They would have to meet me at the subway station and take me the rest of the way...there was no way to really describe the location, tucked under the highway, a block or so from the main road. I've added an edited screengrab in case you're in the area and find yourself hungry.
And would I mind if she invited some other friends of hers, also designers? No. No...I would not mind at all.
Soon I found myself at a table, staring face to face with a well-grilled snakehead fish, his mouth crammed with lemon grass, my mouth crammed with snakehead fish. Around the rickety table were my new Thai design friends. We shared a wonderful meal and plenty of talk about design and the global economy. Over the next weeks, I would visit some of their studios, visit their student reviews and tour their national design center. This was just the beginning.
Later that week I visited Studio Aeroplane. Like many smaller studios, there are a small number of principals and they scale up with freelancers. The principals, Orn and Saranont, are both Thai natives, who met in New York City. Orn grew up in New Zealand. We got connected because she went to my alma mater, Pratt and it is a small world, after all. Orn worked in New York City for several years in Interior Design before deciding to return to her roots with her boyfriend Saranont, who grew up in Bangkok and stayed for his design undergraduate degree. Saranont went to ITP at NYU and worked at Antenna Design New York. It was slightly surreal to be sitting at a down-and-dirty food stall in the backstreets of Bangkok with two designers with such pedigrees. I was thrilled to get invited to their studio...after a few months of traveling I was starved for creative and intellectual company.
Since I'm from New York I'll describe my trip there in New York City equivalents...although there is really no New York equivalent to the experience of getting to their studio. Imagine taking a sparkling above ground subway to Union Square, except that Union Square is somehow on the East River. There I met up with Orn and Saronont and took a tiny boat across the river to the Bangkok equivalent of Queens, getting off on a tiny dock onto the back patio of a new high-rise development, with a pool, nice outdoor furniture and a huge parking lot. The boat is just for people who live in their building. The boatman knows your face. If I wasn't with Orn or Saranont I would have been turned away.
The studio is more than a studio...it's a one bedroom on a high floor, overlooking the city and the river. They can sleep there and sometimes do. The rest of the apartment is filled with books and two computers, the walls filled with printouts of interiors they are working on, and posters from past shows. The colors, the textures, the computer programs, all of it felt like apple pie from my mother's kitchen...comforting, invigorating, familiar. It felt like home in the sense of a familiar feel—it was a design studio, like all other design studios. And it was an actual home. While they didn't live there, they basically lived there. As you can see from their facebook feed, Studio Aeroplane's work is world-class.
The interfaces and spaces they've designed are clean and classic...which has worked against them from time to time. It seems that their clean aesthetic isn't always accepted, as there is a desire to clutter them up or dumb them down...all in the name of making things easier to "get" for average Thai person. I have engaged in similar conversations here in the States. Saranont and I had a good rant about de-skilling people through over-design and the dangers of removing any opportunity for discovery.
When analytic thought, the knife, is applied to experience, something is always killed in the process. That is fairly well understood, at least in the arts... Something is always killed. But what is less noticed in the arts—something is always created too.
-Robert M. Pirsig, Zen and the art of Motorcycle Maintenance
I teach design process to people with very little experience in design, at a thing we call the Design Gym. The response from our attendees is always very positive. People, with this new knife of analytic thought, feel excited and energized to go and use it in their lives, to organize their thoughts and to approach their problems in a new way. When I tell other frameworks for non-designers to better understand design, the responses are sometimes controversial.
A few months back, at an Interaction Designer's meetup, I brought up what I do at the Design Gym. A new friend protested adamantly against the idea of process. He insisted that he just got in, rolled up his sleeves, and got the job done. He insisted that he followed no process at all. Plus, he derided process as rigid and no fun. And in one way, he's right: something is killed when you think about and describe what you do. He feels that a certain freedom is killed. But what is created?
One of my friends from Industrial Design school recently had me over to discuss her portfolio as she considered her options for jobs. She's been working at a design-driven consultancy for the past several years as a senior designer... and the feeling is that it's time to start getting ready for the next step. The consultancy she works at doesn't have an explicit process—companies come to them for their brand power and aesthetic. So when showing the story of a project, there are too few pieces around to speak to. There are a few sketches, then some renderings, then the object. Which is a story, after all...but it doesn't speak to the why or the how—the sort of things employers say they love to see in portfolios. I think she realized that this was a problem, which is why she had me over: to help her find and tell her story, through the lens of process.
What is created when we apply a process? When process is used consciously you have evidence of work for each part of the design process. Those groupings of work help tell the story of the project, and the decisions made at the transition points in the process.
Photographs by Tom Rohrer, senior interaction designer at frog
One year after Facebook granted Design Mind an inside peek, Facebook's director of design opens up on the company's latest goals and strategies.
Silicon Valley is undergoing a design renaissance. In an age when just about anyone with a computer and an idea can create an app, companies are asking themselves, "What is the secret to success?"
The tech community used to think it was about the back end, so it focused on efficient code bases and faster software. These will always be very important, but technology companies are beginning to realize that winning customer hearts is as important as winning their minds and that success lies in those little moments of delight when a product doesn't just meet expectations, it exceeds them. This is the province of designers—and it's why we're now taking center stage.
Facebook was one of the first companies to place a premium on design. When I say this, people sometimes raise a skeptical eyebrow at me. Facebook, a design company? Let me explain.
Facebook was built on the idea of putting people at the center of everything, of human-to-human interaction. We call this principle "social design," and it's the heart of everything we do here.
Computers are getting smaller and smaller; now they fit in our pockets, and we bring them everywhere. And this shift to mobile presents new design challenges for Facebook. But I believe that we're well positioned, because for the three and a half years I've been with the company we've focused relentlessly on moving fast and always being ahead of the curve.
First, we're very transparent. This is a vital part of how the design team works—and the whole of Facebook. In an industry where companies live and die by their ability to move fast and be creative, we think keeping a culture of complete openness is essential.
Let me take you through each rule change, tell you how I think they will effect Product Design projects, and then finish up with something I think Kickstarter should consider.
Change #1: Risks and Challenges section
Located at the bottom of a project's home page, this is a Creator written overview of the risks and challenges a project will/could face. It's now in effect for all Kickstarter projects.
This is a great idea. Backers should know upfront what needs to happen to make a project a reality and it reinforces the idea that Kickstarter is not a traditional store.
Ultimately, this rule will be more beneficial to Creators than Backers. The more you think through potential pitfalls, the better prepared you will be. Many of the Creators I see doing product design projects on Kickstarter are novices and don't think about this until it is way too late (crying to themselves at 2AM, ten months past their estimated delivery date).
I actually think Kickstarter should take this a couple steps further, with Backers receiving more background information on the Creators. Things such as the number of people on the project team, how far along in development they are, what their professional/educational background is, and how much manufacturing experience they have, should all be made available for Backers.
One thing I want to note: The projects I've seen use this new Risks & Challeneges section don't seem to have put enough thought into it. On one project I saw, the Creator wrote a three sentence description that boiled down to, "There are many steps to complete," with no explaination of those steps. Perhaps Kickstarter could give a basic outline that would help Creators fill this form out and make sure they answer important questions?
Verdict on Change #1: A good change that should go further.
Change #2: Product simulations and photorealistic renderings are prohibited. Pictures of prototypes in their current state, technical drawings, CAD designs, sketches, and other parts of the design process are allowed. This only effects Product Design and Hardware projects.
The problem Kickstarter is trying to address is the right one, but the way they're trying to solve it is wrong.
Here is what's currently happening: When Backers see a hot looking computer rendering, they (understandably) think what they are looking at already exists and support the project believing that the project will ship with no problem. This is bad.
The problem isn't renderings, it's that Backers don't know how to interpret renderings. Most of them probably don't even realize they're not photographs. However, you don't solve this communication problem by eliminating renderings, you just create new problems.
Kickstarter's solution is to only allow pictures of prototypes as they exist at the time of the project launch.
Prototypes are really important and should be required for all Product Design and Hardware Kickstarter projects. You learn more about how your design works and will be produced from making a physical mockup than you would from 100 renderings.
But here's the thing, prototypes can be just as misleading as renderings. It's easy to make a single prototype, just like it's easy to make a photorealistic rendering. The trick is actually mass producing that thing. I can't tell you the number of projects I've been on where we get what looks like a finished prototype back in a month but then it takes another year to get it through production.
Eliminating renderings does not make manufacturing easier, it just makes it harder to describe to Backers what you are trying to do.
Here's how I would solve the problem. Make prototypes required, but also allow renderings. The difference will be when Backers see images of those things, they need to be clearly labeled as to what they are with Kickstarter provided explanations of what a rendering is and what a prototype is. That way, Creators would still have the tools they need to tell their story and Backers would have an explanation of what they're looking at and a better understanding of the level of development that has gone into the project so far.
Verdict on Change #2: This rule doesn't solve the real issue: Backers need to be educated on what they are looking at.
My recommendation: Kickstarter should start requiring prototypes, but renderings and simulations should still be allowed. In either case, both must be clearly labeled as to help Backers understand what they are looking at.
Change #3: Offering multiple quantities of a reward is prohibited. This only effects Product Design and Hardware projects.
In the past, Creators were able to offer different quantities of a single product. Say my project is to develop a "widget". I could offer a reward tier that would allow you to purchase one "widget" and another reward tier where you could purchase five "widgets".
Kickstarter's hypothesis is that by limiting the quantity of "widgets" that are produced, it will help make life easier for Creators. This is a fundamental misunderstanding of how to streamline manufacturing.
Producing large quantities of a single item actually helps Creators. It allows them to make larger purchases with their vendors, giving them more clout with that vendor, which keeps Vendors motivated to help the Creators. Smaller orders always get less priority, leading to delays. Larger orders can also mean more efficient use of a Vendor's equipment. Once a production line is up and running, the difference between producing 500 and 5,000 can be minimal.
For Creators, large quantities of a single item can lead to bulk discounts. If 1,000 "widgets" costs $1.00/unit to produce, 5,000 "widgets" might cost $0.50/unit to produce. This is hugely beneficial to Creators, especially when the unexpected happens. It's common on Kickstarter for shipping to end up costing more than estimated or a project turns out to need more development than anticipated. We shouldn't punish Creators for things that happen all of the time in even normal product development.
Utopia or Oblivion?
Buckminster Fuller framed this question in his 1993 book of the same name, warning that mankind's prospects would go decisively one way, or the other. Twenty years on, it is clear that nobody could have answered his question with any certainty. This is because we are all entangled in it. Fortunately, most of us have heard of the butterfly effect, so we are slowly realising that each one of us has some responsibility for what happens. What does this mean for 'UCD' (User-Centered Design)?
Putting The User at the Center
In 1966, Joseph Weizenbaum created ELIZA, a computer program for diagnosing medical conditions. It conversed with patients directly, via screen-based questions in everyday language. But it did it so cunningly that most correspondents thought they were talking to a human being. The question and answer routine was based on the psychotherapeutic approach of Carl Rogers, best-known for developing an extremely patient-centered approach. Technologically speaking, the program was very simple. First, it addressed the respondent using her first name, asked open-ended questions about their state of health and incorporated some of their own words in its answer. The strategy worked so well that users were convinced they were talking to a sympathetic doctor, rather than a machine.
How Useful is Humanism?
One of the things we might deduce from Weizenbaum's experiment is that educated people become very susceptible to suggestion, once they are placed at the center of their emotional universe. The idea of user-centered design grew out of 'humanism', which can be traced to ancient Greece and the early Christians, who came to value the differences between individuals. However, while humanism has many admirable qualities, it is a dangerously incomplete basis from which understand things.
If we were to make a caricature of the humanistic world in picture-book terms, Nature would be depicted as a faint grey backdrop, with people standing out in bright colours. The growth of humanism gave us a strong belief in free will. More recently, in the era of consumption, it has tended to make us restless and unsatisfied. This is a paradox. In the 21st century, never have so many people had so much access to so much information. Yet, our species has become increasingly disconnected from the complex ecosystem that nourishes and sustains it. This is because, for the sake of convenience, we have manipulated, or dumbed-down our perceptions of what is immediately around us. What should worry designers, in particular, is that they played a major part in creating this artificial, user-centered world.
I've talked to a lot of designers over my career. Many of them knew exactly what they wanted to do from a young age. They had some kind of mechanical inclination and an innate desire to take things apart and to create. They have the ability to focus and noodle over an idea in the methodical, inexhaustible manner of a diesel engine. In the world of the tortoise and the hare, they're the tortoise. This article isn't about them.
There is a whole other group of designers that run the race in a much different manner. If I keep with the engine analogy, they're more the Ferrari's of the world. They run fast and hot, hugging the corners with a jaw-dropping ability to win the race with awesome speed. Ideas for these designers come fast and furious. As capable as they are of the exhilarating win, they can hit the wall and explode into a gazillion little pieces. This story is about these Ferrari-like designers. They are designers that live with Attention Deficit/Hyperactivity Disorder—ADHD or ADD for short.
Part of the Human Condition
My research, since my diagnosis a year ago, has led me to believe that ADHD is on the continuum of the human condition. A belief which is supported by the fact that every time I describe typical symptoms of ADHD to someone, they claim that they show signs of the same problems. I mean, seriously, who doesn't forget their lunch on the counter or misplace their keys every now and then? I am sure you can't point a finger at a single person and have them deny that they've gotten so engrossed in a task that the world melted away and time warped. We all have scatter-brained moments complimented by intense focus. So, what is it that separates somebody with ADHD with their bouts of forgetfulness and ability to focus from the herd?
In short, it is frequency and impact.
Frequency is an easy one to explain. The frequency in which things like car keys teleporting from the place they were last seen to the top of the 7 foot-tall bookshelf (true story) is far more common for someone with ADHD than someone without ADHD.
The tougher part to explain is impact. The psychological impact of losing one's keys shouldn't be a big deal. It should fall under the category of "shit happens" and thrown into the mind's circular file shortly after you finally do find said keys. It isn't uncommon for a person with ADHD to believe they're stupid due to their ongoing struggle with convergent thinking (aka taking tests). When you go your whole life where weekly, if not daily, you're going through these exercises in frustration, the impact on your psyche is cumulative. This is the hardest part to express. It is an emotional reaction that borders on visceral. It affects the rest of your day and rather than recovering, it feels as though it snowballs and makes things worse as the day goes on.
The Good, the Bad and the ADHD
For many, their experience with ADHD is that most all of the "bad" parts of the disorder can be managed through awareness, discipline or even drugs. It seems like everywhere you turn, someone is talking about the problems of ADHD but not the benefits. The part that I want to ensure is understood is that there are many facets of ADHD that can be weapons for a designer's success. Some might even argue that a designer with ADD has an advantage over those who don't. Again, research shows that a brain that is wired by ADHD is also tuned for creativity. Matthew Kutz, a 13-year-old student with ADD, explains it very succinctly:
"Being ADD means you see things other people miss. When you see a peach you see a piece of fruit. I see the color, the texture and the field where it grew."
The Internet is about to become a more colorful place, and more stylish and enticing than .biz, .tv or even .xxx ever dreamed of. New gTLDs are "generic top-level domains" are scheduled to be released on the Internet in the third quarter of 2013. What does this mean? To start, ICANN (Internet Corporation for Assigned Names and Numbers), the United States' non-profit that coordinates the technical aspects of the Internet, is currently reviewing nearly 2,000 new gTLD applications for extensions such as .music, .Nike, and .Africa. The Internet will also become increasingly multi-lingual because it opens up the gTLD system to non-Roman characters. The international community may soon encounter the .بيتك (Arabic for "home") and .时尚 (Chinese for "fashion") extensions. By way of comparison, there are currently only 22 gTLDs (e.g., .com, .org, .net, etc.), restricted to the Roman alphabet.
What does this mean for the design community? We can likely expect to see the .design gTLD as well as a variety of design-related extensions including .architect, .art, .build, .fashion, .green, .home, .homegoods, .hotel, .kitchen, .lighting, .photo, .photography, and .style. Eight companies with competing visions have applied for control over the .design extension. One Japanese applicant aspires "to foster a sense of professionalism and trust among design customers." Another Canadian applicant purports to create "'focal points' around 11 key disciplines of design...intended to be communities of interest and commerce." While it is too early to say who ICANN will ultimately accredit to run these new gTLD registries or whether the competing applicants will reach some sort of joint-venture settlement, the online design community will, for better or for worse, be affected.
In one scenario, the chosen registry might encourage professional development by restricting who gets to use .design (e.g., www.JaneSmithArchitects.design) and implementing cyberbullying policies with "rapid takedown policies." In another (albeit less idealistic) scenario, the registry might simply allow more of a free-for-all (e.g., www.JaneSmithXXX.design). As designers, the time is now to weigh in on the usage and delegation of the new gTLDs. If you feel strongly about how the new gTLDs should be delegated, or believe that an applied-for gTLD infringes your intellectual property rights, ask your lawyer about filing a formal objection with ICANN through January 2013. You can also participate in the public comment period which has been extended through September 26, 2012 [post comments here].
A few weeks ago, an intriguing New York Times blog post started making the rounds on my Twitter feed, and it's still popping up today. I can see why. Dubbed "The Busy Trap," Tim Kreider's article makes a simple claim:
Idleness is not just a vacation, an indulgence or a vice; it is as indispensable to the brain as vitamin D is to the body, and deprived of it we suffer a mental affliction as disfiguring as rickets. The space and quiet that idleness provides is a necessary condition for standing back from life and seeing it whole, for making unexpected connections and waiting for the wild summer lightning strikes of inspiration—it is, paradoxically, necessary to getting any work done.
It was eye-opening for me that my social circle consists mostly of Type A personalities, as I could feel a collective sigh from the artists, designers and writers in my feed who recognized themselves all too well in this story. In an economy like ours, and as designers throw themselves wholeheartedly into using their skills to address social issues, it can be hard to contemplate idleness. But as the article makes clear, taking time out is often the best thing you can do for your creativity.
As the ancient Greek engineer Vetruvius told us, Archimedes was lounging in a public bath when he noticed the water level go up and down as people got in and out. He suddenly realized that water could help him calculate the density of gold. "This alteration [of thoughts] may be very useful for churning the creative process," says Jonathan Schooler, a psychology professor at the University of California, Santa Barbara.
Easier said than done, of course, in a world that seems caught up and defined by deadlines, bills and the the relentless pace of social media and globalized communications. But almost every great designer I've met has preached to me the value of taking some time out and just... being. It's good for the mind, but it also means better ideas. And it seems that the more you can carve out for idle time, the more that will reap rewards in creativity.
Mo Duffy is a senior interaction designer at Red Hat, a billion dollar company that is the world's leading open source and Linux provider. I met Mo this past spring when we spoke on a panel at SxSW. I was struck by her insights into her profession and how those insights relate to all design professions. Not only does she get into the nitty gritty of the politics of the workplace and the realities of usability testing, but she is a passionate advocate for open source and the democratization of design.
* * *
Xanthe Matychak: How do you define Interaction Design?
Mo Duffy: I define interaction design to mean the design of systems and interfaces where humans and computers interact with each other, and, more importantly, where human beings interact with each other mediated by computer systems.
And the goal of interaction design, in my opinion, is to be as invisible as possible. Whenever a person is jerked into thinking about their computer system or their software rather than the task they are trying to do, such as getting a video chat with a loved one to work or checking their work email, that's when poor interaction design is noticed. Good interaction design is transparent because it allows for an experience so seamless, you don't notice it. It's invisible!
What challenges did you have when you first started and how did you overcome them?
I had a few challenges when I first started. I came from a graduate program that, at least in the track I ended up following, had a very strong quantitative bent to it: useful for generating HCI research and running a usability lab, yes, but I wasn't interested in either, as it turns out. In my program I started worrying that pumping out awkwardly-written research papers in pricey academic journals developers wouldn't or couldn't afford was not going to make a huge difference in open source software, and I started worrying that I was wasting my time.
It also felt like the maxim that you must run hours of rigorous usability tests on every piece of software before it's ever put in front of an end user had somehow been drilled into my head, and when I finally found myself in industry, I discovered the dirty secret that what I was taught regarding usability testing and how it happens normally is hardly ever the case in reality, at least in industry. Most testing that I've encountered or been involved with has aligned far most closely with Steve Krug's methods in Don't Make Me Think than any of the rigorous multivariate statistical analysis and eye-tracking studies I was involved with in my academic program. I feel kind of dirty and bad to admit this, but cheap and quick testing works, and sometimes you need to get a product out the door and you aren't in a position to stop the train no matter how much you think it needs more time and polish. You feel lucky you got any sort of testing in at all. There are so many forces that affect software, well beyond usability, and they deserve respect as well: for example, if you delay and delay until you have the most wonderful, engaging user experience in a piece of software that connects with a completely irrelevant technology—say, the world's best VHS player—did you make the right call? Coming to terms with non-textbook reality here took me a long while and was a big challenge.
Another challenge that was at least in part unique to those of us who work on open source projects as designers—I found out that as an interaction designer, you really have to learn to market and sell your ideas to the developers and other open source community contributors involved in a project. There is no management chain and expectations that a developer must write the software the way your design spec states simply because you're The Designer. The challenge was learning (the hard way) that a great interaction design is not enough: if you want it to happen, you need to develop some salesmanship, build up trust, use your research to back your designs up, and have a real enthusiasm and excitement for what you do in order to inspire the developers and other folks involved to pick that design up and make it into working software.
In my first job as an interaction designer, I was the first designer several of the developers had worked with. That was a bit of a challenge, because at times I had to take on an educational role, advocating for design itself, when I felt I didn't even really have enough experience to be in that position. I still sometimes get confusion over what an interaction designer is—thanks people who keep coining new terms for the discipline—to the point I get a continuous stream of logo and icon design requests. The software development process the team followed didn't really account for design or usability testing in the schedule, nor did the business processes involve it much at all. At times I felt I had to fight to interject myself into the process or risk being ignored by it, but I definitely had sincere enthusiasm both for the project and the team and I think that helped me bust through a lot of these kinds of barriers.
Fusionbrands has been changing the way we cook and prepare food since their first product launched to the marketplace in 2005. You might be familiar with thefoodloop, the first silicone tool to replace string for trussing, or their foodpod, a silicone "basket" that's designed to conveniently contain and drain foods prepared by boiling, blanching or steaming.
In 2007, Fusionbrands released the poachpod, a floating, flexible silicone egg poaching tool. The poachpod was an instant success, garnering accolades like the 2007 Gourmet Gadget of the Year award. Simultaneously, Fusionbrands worked to protect their work; in 2007 poachpod received a registered trademark and in 2008, a design patent.
As the popularity of the Fusionbrands products soared, the copycats emerged. Fusionbrands began to take action to protect its intellectual property and its brand by notifying manufacturers, distributors and retailers of its patents and trademarks and, when necessary, filing law suits. Beginning in 2009, Fusionbrands filed the first of several federal lawsuits against U.S. companies from Massachusetts to California, from manufacturers to retailers, to stop the sale of knock-off products. They've won every court battle or settled with the infringers. But the their true victory is the hope that this success would serve as example and clearly demonstrate that Fusionbrands could always be expected to invest in protecting its brand and patents.
In 2010, the poachpod received a highly respected and rare-to-the-industry Method Patent relating to the specific method of poaching eggs allowed by the form and function of this unique product. Achieving this all-encompassing patent allowed for legal action to be taken and lawsuits filed against all forms of infringement. Since 2010, Fusionbrands has won more federal court victories or settlements and has seized or destroyed over 100,000 products that were accused of infringing its patents.
In light of our week-long focus on design patents, we thought we'd sit down with Anna and Kraigh Stewart, the founders and designers behind Fusionbrands to learn more about their piracy battles. As a small, independent design company, their no-nonsense stance against counterfitting and piracy is a win for the entire design industry.
Core77: What motivated you to first start seeking legal protection for your products?
As designers, we have an instinctive need or drive to protect our IP and creations. It's almost a parent-like response—whether you are a writer, musician or sculptor you have an innate motivating factor to defend your work of art. Obviously we want to protect our designs and innovations from theft. In order to even be able to take legal action there is a ton of preparation that goes into advanced planning. Before we even made product number one, thefoodloop, we were well prepared.
Are all the legal drama and headaches worth it?
It's a painstakingly slow process but when you succeed it's entirely worth it. Besides taking lots of time and money it's extremely distracting from the process of designing, selling products and running a business. In the end, the struggles are rewarding just knowing that our designs cannot ever become generic. Copycats stand on the shoulders of real product developers and it's invaluable to see the people and the company who use a stolen idea, stopped. The emotional roller coaster ride is tough, but victory sure does feel good.
*The views expressed herein are solely those of the author and do not necessarily represent the view of his firm or its clients.
Our articles so far have laid the foundation to repair the broken image of design patents. While this can help you argue for the resources to seek design patent protection, we also need to learn what to do to make sure that the design patents you seek end up meeting the expectations that you set for them.
A big part of the reason for requiring patent lawyers to have a science or technical background is to put a lawyer and inventor-client on the same page from the beginning of the patent drafting process. As illustrated in the graphic below, the knowledge involved in putting together a patent application has three components. First, someone needs to have deep knowledge of the product itself including how it works, how it was designed and what's unique about it. Clear on the other side of things, there needs to be deep knowledge of patent law, including all of the patent office rules, the legal limits of what you can claim and how and all of the various legal traps that one can fall into when writing a patent application.
Somewhere in the middle, though, there's a section of knowledge that requires viewing the product itself from a legal perspective. This involves all of the considerations discussed in the other parts of this article, including what to claim as individual inventions, what is the broadest coverage that you should seek and what backup positions should be included. On top of that, it also involves how to describe a product within the context of all the legal rules and requirements to achieve the type of coverage desired.
When a lawyer's technical background aligns with the area of the product being patented, the lawyer can handle the bulk of the middle section, as illustrated in the graphic below. The lawyer can generally describe the requirements for a patent including the theories of novelty and obviousness to help the client understand what the lawyer is doing. These bits of patent law knowledge can also help the client make decisions that balance potential coverage with real-world considerations such as cost and timing.
On the other hand, when dealing with design patents, there will likely be much less of a knowledge overlap between designer and lawyer. As illustrated below, there are many instances where there is no overlap at all or even a substantial gap in knowledge that really prevents the lawyer and designer from getting on the same page and developing a good working relationship. This, in turn, can prevent the lawyer from knowing what really needs protection within an overall scheme and can also prevent the designer from fully appreciating that something could be done.
All of this can really make it seem like an uphill battle for designers seeking a comfortable level of design protection. Do they first have to educate a lawyer on the finer points of design to close the knowledge gap? Do they, instead, have to first learn all there is to know about patents and patent strategy before discussing things with a lawyer? In a perfect world, yes, both sides could do a little extra work to close this gap, but as a more practical solution, I've developed a short list of questions that designers can ask themselves as a beginning to the design patent process. These questions are aimed to help designers start to bend their thinking toward the patent side of things. They can help designers put things in terms that a lawyer can use and understand.
*The views expressed herein are solely those of the author and do not necessarily represent the view of his firm or its clients.
Now that we've seen how a valuable design patent strategy can begin to take shape, we'll step back a little and look at how even a known positive aspect of design patents ended up being misused to their detriment. This can also give us a clue as to where to start to turn things around and rehabilitate the reputation of design patents.
Misconception 3: Design patents are, at best, just an easy way to get a patent number on a product.
In all the ways that common misconceptions about design patents are wrong, the notion that they're easy to get is actually correct. That is, compared to utility patents, they're relatively easy to get. The patent process itself is confounding, difficult and full of seemingly inane rules no matter which side you're on. However, once a utility patent is filed, it often faces an uphill battle to actually be allowed by the United States Patent Office. For one, the waiting list for utility patents to be examined is between about two and three years. Once examination starts, the back-and-forth arguing with the patent office over whether or not a patent is actually deserved can take at least another year and can be endlessly frustrating.
Design patents, on the other hand, only sit for about six months to a year before being examined. Even better, many design patents are immediately allowed or only face formal objections, rather than more difficult substantive rejections, that are almost automatic for utility applications. Even taking a more strategic approach to design patent filing may not have a significant impact on examination times because the sheer volume of design patent applications filed is so much lower than with respect to utility patents.
Many people who are otherwise unconcerned with the visual aspects of a product seek to use the ease of getting a design patent to their advantage. Their goal is to quickly get a design patent, even a cheap one, to be able to honestly mark a product as "patented" or to have some minimal level of protection while they wait for their utility patents to issue. When people take this approach, they really don't care what they end up with; they just want it to be cheap and quick. This is a big part of the reason why so many bad design patents exist.
The problem that stems from all the bad design patents out there is that, eventually, people do decide to try and enforce some of them. The courts have always seemed to struggle not only in trying to make sense of visual design but also simply trying to find a way to keep design patents, including bad ones, afloat. More often than not though, actually winning a design patent lawsuit proves exceedingly difficult. This phenomenon fed back into the perception that design patents themselves are inherently weak, causing that myth to become widespread.
The perception of design patents was on a downward spiral for some time, during which repeated half-hearted attempts at design protection were followed by repeated unsuccessful but costly attempts at design patent enforcement. It got so bad that even in cases where those involved felt that the product's design really did matter, the motivation behind any accompanying design patents was simply the thought that "well, this does have a design so we might as well file a design patent."
In spite of all this, the Federal Circuit recently opened the door somewhat for design patents. In what would seem like a very innocuous case involving a design patent for fingernail buffers, the Court removed a critical aspect of the law of design patent enforcement that was partly what made winning a design patent lawsuit so difficult. In the absence of the requirement that design patent plaintiffs spell out the "points of novelty" of their design before it's compared against the alleged infringing product, design patent enforcement may now prove easier. In one example, the footwear maker Crocs was successful in a lawsuit against some knock-offs that actually had some noticeable differences from the patented design (this should also ease any concerns that a design has to be universally lauded to deserve design patent protection).
*The views expressed herein are solely those of the author and do not necessarily represent the view of his firm or its clients.
In the first article of this series, we introduced the idea that valuable design patents are something that designers can, and should, work to obtain. We also explored the misconception that design patents are inherently narrow or easy to get around and discovered exactly where the holes in such a belief lie. In this article, we'll look at how the cost of design patents affects how people perceive their value and what the actual cost of a good design patent strategy should be.
Misconception 2: Design patents are cheap (and why it's a good thing that this is wrong)
Anyone who has participated on both the design and utility side of the patent application process can see a difference in how the applications get written and assembled. Both the amount of information exchanged and the time taken for preparing a utility patent are much greater than when dealing with a design patent application. Of course, this time is ultimately reflected in the cost of the application, which in the case of a utility, is typically expected to be in the range of $8,000 to $12,000. That, however, is for a single application that may only cover limited aspects of a product. Simply comparing this to the cost for a design application, which can be between $2,000-3,000, shows a notable difference in the expected amount of time usually spent on these two types of applications.
Adequately covering a new and innovative product on the utility side, however, can often involve multiple applications, adding up to sometimes more than $50,000 for a single product (and that's just to file the applications). Most of the time, when working on the design side, only a single application is filed. The Patent Office might require an applicant to split up the application into separate applications that cover what they determine to be different designs, even if only slightly different. Such a requirement only incrementally increases the cost, which ultimately pales in comparison to the total on the utility side.
This vast difference in cost certainly makes design patents look cheap. Simply because there isn't much actual legal writing involved, design patents shouldn't cost as much as utility patents. But, they shouldn't be viewed as cheap. There are probably a lot of designers who wouldn't view $3,000 as cheap, but the overall notion, especially from the perspective of someone paying $50,000 to begin the utility patent process, is that design patents comparatively lack value. It's also worth mentioning that there can also be a significant additional cost in actually getting a utility patent through the Patent Office. The cost of so-called patent prosecution can add another $10,000 to $20,000 to the cost of a utility application itself (it can be more in extreme cases) and is also less expensive when dealing with design patents.
*The views expressed herein are solely those of the author and do not necessarily represent the view of his firm or its clients.
The mere mention of design patents in the title of this article has already gotten most of you thinking about the ongoing trial of Apple against Samsung. Many are waiting to see which side of the dispute I'll favor and some people are ready to unleash their arguments against my position. They'll have to keep waiting, though, because this article isn't about Apple v. Samsung...well, as much as any article on design patents right now can manage to not be about Apple v. Samsung.
While we wait through what many are characterizing as the "boring" part of the trial, I'd like to take some time to discuss design patents in general. I'm sure that many industrial designers who are following the Apple v. Samsung case are wondering how a handful of design patents, the oft-maligned afterthought of the intellectual property (or "IP" world), can make up a significant part of a $2.5 billion lawsuit. More importantly, designers should be interested to know what the impact of this case will be on design patents and how that will affect their own work.
From a purely legal standpoint, nothing is likely to change because of Apple v. Samsung, regardless of the outcome. Any design patent not involved in the trial will be the same on the day after the verdict as it was the day before. The decision in Apple v. Samsung is going to be based on how the jury interprets the facts of the case. The only way any law has a chance of being changed is if a decision gets appealed.
The real potential for impact, however lies in the mere fact that the design and business worlds are paying close attention to the design patent side of this case in the first place. Design patents have been around for over 150 years and in that time have only seen limited usage. Sure, many people or corporations have sued in the past to enforce their design rights with some success, but both the number of design patent lawsuits and the number of design patents granted pale in comparison to those of utility patents.
The traditionally meager status of design patents is the reason why many designers are likely surprised by the prominence of design patents in Apple v. Samsung. In all reality, practically everyone who has an opinion holds design patents in the lowest esteem of all the different forms of IP protection. You'll find that most people listing the different areas of intellectual property will rattle off copyright, trademark and patent while actually only thinking of utility patents—the more esteemed form of patent protection that is geared toward what an invention is or how it functions.
If asked about protection for the visual aspects of a product's design, that same person might then dismissively mention the existence of a design patent before relaying a common view about them: they're easy to get around, but they're cheap and easy to get. This perspective views design patents, at best, a quick way to get a patent number to slap on a product.
The negative view of design patents is so widespread that even most designers feel that there is no meaningful way to protect the appearance of a product. The fact is that while many of the innovations that come out of design and design thinking find adequate protection in utility patents, most designers feel that there is no meaningful way to protect the appearance of a product. As a result, designers often feel that a substantial part of their work is left vulnerable to copying. This feeling exists in spite of the fact that an entire section of IP law in the United States has been carved out for the protection of a product's visual design.
Before we get too far in, it is important to understand the different types of IP protection and how they relate to each other. Put as simply as possible, patents protect things and methods for making or using things, trademarks essentially protect brand identity and copyrights protect artistic expression. As mentioned above, patents are further broken down into utility patents and design patents. While methods fit exclusively within the area of utility patents, physical things can find protection on both the utility and design sides.
Essentially, the structure or functional elements of a thing can be protected by utility patents, and the physical appearance can be protected by design patents. If there are any features of a product that straddle the line between being functional or being visual, you can often find a way to get protection from both types of patents. This alone is a major advantage of design patents over trademarks and copyrights, which both specifically exclude coverage for anything functional (the recent grant of trademark protection to Hershey's notable chocolate bar pattern notwithstanding). To get design protection for something that has unique characteristics both visually and functionally, all you have to do is to find a way to present it so that the appearance of what you're protecting is dictated more by aesthetics than by function, if only slightly.
While Apple v. Samsung isn't currently rewriting any design patent laws, it's certainly putting design patents in a position that makes them hard to ignore. Apple's focus on its design rights with respect to a product that is also covered by over 200 utility patents (by Apple's own count) is making people realize that, if you're serious about design, you need to seriously consider design patents. The key for designers going forward is going to be knowing what it means to be serious about design patents.
Unfortunately, I can't simply say that the common, dismissive view of design patents is absolutely false and that filing more design patent applications and suing more people for design patent infringement will fix everything. The fact is that not all design patents are created equal, and that it's really easy to end up with a bad one. If you go into the patent process with the view that you're just trying to get a cheap and easy patent, a design patent can fit that bill, but it may prove to be worth about the amount of consideration and time that went into it. Often, this ends up being very little or nothing at all. On the other hand, with the right thought process and a little extra effort, it is actually possible to get valuable coverage from a design patent.
The problem is that the cheap and easy approach to design patents is so pervasive that it weighs down the entire design patent system. The result is that each of the components of this view have been almost accepted as fact. However, the thinking that design patents are easy to avoid, that they're cheap and that their only redeeming quality is that they're easy to get, are really misconceptions about design patents that arose over time from lack of understanding of or appreciation for design itself. As you can see, this problem is bigger than three individual design patents and can't be fixed by one simple trial, but designers can use the opportunity presented by the current attention to design patents as a way to take steps to erase these misconceptions.
To understand how to get valuable design patents we need to understand why so many bad design patents have been filed and have been issued in the past. This involves exploring each misconception about design patents to see that they are not indicative of inherent limitations of design patents in general. Of course, simply knowing that good design patents are a possibility is only one step to actually getting one yourself. Fortunately, there are a few simple things that designers can do themselves to ensure that the design patents they get or that cover their designs are worth the effort and expense.
Misconception 1: Design Patents Are Easy to Get Around
Everything starts with the idea that design patents are inherently narrow in scope and that any design patent can be avoided or "designed around" by simply making some minor change to the original design. Historically, it's true that most of the people who have tried to sue someone for infringement of a design patent have found that their patents can't protect against much more than blatant copies. We can see that this isn't always the case though, by the simple fact that Apple's case against Samsung has made it this far. The reason why people have such a hard time covering other products with their design patents, however, is really a problem with how those specific patents are put together and not because of some built-in limitation of design patents in general.
We are about to reach the climax of a very big war among multi-national technology companies. The chess pieces of this war will be intellectual property (IP). In all war there is collateral damage and in the IP battles that damage is two-fold effecting consumers and smaller technology companies.
A Brief History of Software and Patents
The IP Wars have been going on ever since the United States Patent & Trademark Office (USPTO) opened in 1802. It wasn't until almost 200 years later that it issued a very special patent to Amazon.com for a software process, "1-Click." It wasn't the first software patent, but it was the first USPTO-issued patent that was controversial within the software technology group. The patent itself covered no special technologies. No special algorithms. It was a patent of process. Further, the process itself was so ubiquitous within the software community that it didn't seem distinctly unique to Amazon.
This brought up a huge PR and process challenge for the USPTO. They quickly became swamped by attempts for similar patents from business people at large (not just technology folks). Since the 1-Click patent was issued in 1999, the technology community has been very torn. On the one hand, patents were being upheld by the courts and if you didn't play (which meant pay lawyers to make sure it was worth playing at all) with the USPTO, someone will either patent away your rights to your own work, or ignore your unregistered rights and use greater resources to overtake you. On the other hand, it was clear to many that the speed of innovation is too great for policies and laws written centuries ago to have much merit in today's society. Copyright law, in particular, has clearly outlasted its namesake "copy" due to the very nature of digital media where everything that exists can be considered a copy. There are similar issues with patents as well.
But it is also not so simple. In a world where many patents are a mix of hardware (read lengthy and expensive research & development [R&D] cycles) and software (read as short and cheaper R&D cycles) process innovation has become very complicated to understand and expensive. Combining expensive hardware claims with less expensive software claims has made it easier for large companies to protect software that probably would not have been worth the trouble of protecting alone. This has become particularly true in the last 5 years in the mobile technology world. This is why we have landed here today. Apple's iPhone is inarguably one of the most disruptive pieces of technology in its combination of hardware, software and services of the last 2 decades. Apple was very prepared, and for its part, patented a lot of the technology that made the iPhone unique.
Apple also did what many technology companies did. They used other company's patented technologies when it was clear that that company had no interest (though reserved the right) in defending their IP. A fun example of this is actually how Twitter doesn't defend its list refresh patent that Apple is now using in iOS 6. Much of technology would not function if everyone protected their patents, so there is an understanding of the "greater good" within the technology business. But one company's good is another company's opportunity for profit.
As a last bit of background, what is also important to know is that almost all previous suits by Apple, or of Apple have been settled before a trial began. This includes suits with Samsung's partner OS partner Google. Since it is difficult to peel apart what is Samsung's IP from what is purely Google's and since the suit is only with Samsung (at this point), in this article, I'm only going to refer to the IP in question as belonging to Samsung.
APPLE VS. SAMSUNG
Apple has sued Samsung on the claim (to keep it simple) that Samsung has purposefully (that's a big distinction in the world of patent litigation) copied valuable pieces of Apple's IP.
The types of interaction design IP cover 3 distinct types: