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:
- gestural interface design
For its part, Samsung countersues Apple. The bulk of Samsung's complaints are highly technical and centered around technologies that make mobile technologies work.
In its counter suit, Samsung does something very interesting. Samsung feels it has to defend its honor as an innovator and major design force, citing competition wins for their designs. It comes across as desperate in the read and as a lay person I'm left to wonder as to the legal significance to the case at hand.
Apple's claims though are the ones we will look at as they directly relate to interaction design and the future of interaction design practice.
IT'S ALL ABOUT THE FACE
One interesting outcome is that Apple's primary complaint is the first instance where digital surfaces are being declared part of the core visual brand of a consumer electronic device. That is to say, that the distinctiveness of a three-dimensional product is being defined by both it's analog pieces and its digital pieces.
Apple has always been very sensitive to copycats of their hardware. They have always believed that the very look of their devices was a powerful part of the customer value they provide, similar to how a major fashion designer protects themselves from copycats who recreate a design but label it "Prado" instead of Prada.
So we know that the hardware copycat complaint is a major part of this battle. In the age of touch devices this is an interesting point—all the devices are basically a thin rectangle that holds a big piece of glass. This glass projects all the functionality, and most importantly, the visual differentiation that a mobile communication device now has.
There are two pieces to the claim around the digital face of Apple that they believe are at the heart of their complaint. They work together, though they can be expressed separately.
Apple claims that Samsung outright copies Apple's set of core icons on their devices. Take a look for yourself:
US District Court, Northern District of California, San Jose, Division; Apple Inc., a California corporation, Plaintiff, v. Samsung Electronics Co., LTD., a Korean corporation; Samsung Electronics America, Inc. a New York corporation; and Samsung Telecommunications America, LLC, Defendants. Case No. 1-cv-01846-JHK. [Court Doc (2011); pg. 37]
Samsung contends that their collection of icons does two things:
1. That their icons are most definitely different.
2. That their icons build off of ubiquitously used and understood metaphors.
Apple contends that it is the combination of both similar hues, shapes and metaphors together that causes confusion and further devalues the Apple brand.
Further, Apple claims specific IP on the icon for their music player: a combination of the double eighth notes with a compact disc (CD):
[Court Doc (2011); pg. 38]
Not only does Apple claim icon copying, but they claim that the layout of the primary home screen on Samsung devices is a copy of the Apple home screen. This, in combination with the icons mentioned above, causes deep confusion among customers encouraging customers to buy the less expensive Samsung devices while gaining the brand cache associated with the Apple iPhone. Of course, one of Samsung's defenses is that there is no such cache in the Apple brand.
Take a look at the layouts and note that Apple's layout is not a trade dress but is rather a patented function:
In these counts, I have no sympathy for Samsung if they have to pay damages. Samsung and their Android OS platform are both lazy. Looking at the patents here, it is clear that Samsung is in deep violation. I mean why use the same hues in the icons if you weren't trying to copy? Samsung's claim of the commonness of the metaphors in their icons is defensible (except the CD and musical notes) if they even made the slightest effort to employ a different visual design language.
But this last example is where I really call Samsung on their laziness:
What's interesting here is that the icons look remarkably different compared to the others. But why did Samsung have to use yellow flowers? The lack of imagination displayed in the Samsung icon is staggering...the designers could have used a mountain, or a house, or a blue flower.
BUT IS A FACE DEFENSIBLE?
We know that brand is important. Many different types of marks are protectable and defended with strong resolve throughout the history of business. We take these brands very seriously. So with that understanding we, as user interface designers, need to ask ourselves: Is our work a valuable face on the products and services that we design? Is a user interface the potential equivalent of a brand mark that one can register for IP protection?
For me this debate is clear and one of the core value propositions that a user interface designer brings to digital designs. One could say the early version of Amazon's tabs could have been defended the way Apple is defending both their layout and iconography.
For companies that take design seriously—all of their design—they should defend any and all aspects. A truly great design element adds to the total experience a customer enjoys. That experience, if designed correctly, is as core to the brand of that product or service as the brand mark is itself. This isn't limited to Interaction Design, but the Interaction Designer needs to take on this role as much as the graphic designer and industrial designer have already traditionally done.
GESTURES THAT HAVE CROSS-CULTURAL MEANING
IT'S NOT JUST THE GESTURE BEING PROTECTED
It's important to understand that when you read the patent, it isn't simply the gestures that are being protected. The claims are much more complex and much more technical. Here are two graphical examples to consider:
Above: US Patent 7,469,381; pg. 26 Below: US Patent 7,469,381; pg. 36
There is a lot of technical thinking that goes into something more important than the application of a gesture to an interface. My reading of the patent expresses to me what makes Apple so special: their strict discipline in user interface performance. Whenever I picked up an Android phone the first 2 years or so they existed, I always cringed at the slow and clunky motion of the transition between portrait and landscape orientation.
SEPARATE THE EXECUTION FROM THE GESTURE IN THE IP
There is room if the court is to decide that the gestures that the Samsung relies on, like almost every touch device, should be separated from the technology that allows for their better execution. In this way the core interaction design can remain ubiquitously available across all devices and only the means for making the gesture perform well can be protected as IP.
We know that the same pattern of user interface is experienced very differently depending on the performance of the code behind it. One of my favorite recent examples is the changing orientation of the graphical screen depending on how the handheld device itself is oriented. This interaction is very sensitive to how the hardware and graphics perform. One could say the gesture (turning the device) is so inconsequential to the success of the product that protecting that gesture would cause more damage to the business community as a whole.
WHY SHOULDN'T GESTURES BE PROTECTED (NOW)?
Imagine if Douglas Engelbart (inventor of the mouse among other things) decided to patent the gestural behaviors he invented in his work at Stanford University. Ironically, depending on how he defended that IP, the Alto at Xerox PARC and then the Lisa at Apple would have never been created.
The ways that we engage with computers requires that no protections can be placed by any single corporation. The reason is that gestures, like any form of communication, are a part of our linguistic culture. The way language works is that gestures, semantics and syntax need to reach a critical mass of use in order to become useful and viable as a substantive communication tool.
So while on the one hand, Apple invented (many argue they didn't invent them at all) these gestures to be used in these contexts, it is arguably in Apple's interest to allow any and all devices and platforms to use these gestures so that the gesture becomes a larger part of the way that people think about communicating with digital systems. [Editor's Note: See Don Norman's fascinating column "Gesture Wars"] It all comes back to the videos of toddlers swiping at their LCD TV screens to change the channel. Maybe Apple just needs to bow gracefully and acknowledge that they launched into the universe something bigger than themselves.
In a world that Apple's gestures are patented, the worst that happens is that Samsung and other devices have to come up with completely new gestures (maybe even better ones) in order to achieve the same functional outcomes. Or they have to pay a huge licensing fee to Apple that quite a few organizations have already been doing (often these fees are paid in like terms of counter licensing). In the case of Apple vs. Samsung, given the amount of IP that Samsung owns that is relevant to Apple, I would imagine that an agreement of counter licensing in this regard will happen (but I doubt Apple will be "forgiving" about the brand copying issues noted above).
WHY IS ALL THIS IP PROTECTION GOOD?
Simply, it pushes us. From my very limited analysis I see two things:
1. The USTPO is having a hard time with software patents. They are being inundated with applications and it is now taking up to 10 years for some software patents to be finally approved or rejected, where a long appellate process is put in place, it seems to me, to test inventors' resolve and less to determine the validity of a patent application.
2. There are organizations that are up to the challenge and those that are not—doubly so in the world of interaction design. My favorite example of an amazing success with this process is the recent work by Microsoft's mobile design team. Their new Metro UI for Windows Phone 7 was as different from Apple's iOS as any predecessor of iOS to iOS itself. Check it out here:
Notice the use of the phone receiver and the speech bubble signifying the same activities as the equivalent icons on the iPhone. But also notice how they are also so different as well. There is no chance of confusing this home screen at all with Apple's iPhone's.
Another example of this type of innovation in light an intensely tightly protected IP space, is the work that Palm & then HP did with their innovative (though not successful) WebOS.
But something to also remember is that Microsoft, HP and Apple have had co-licensing agreements in place where respect for each other was in place that allowed for innovation in new areas to create new value for their organizations and the interaction design community, too.
We know in the history of IP litigation that we can never know what a jury might do (if it goes all the way) given they can not only decide on a winner, but also levy fines. It is also clear that these IP battles are a huge waste of time and money that would be much better served being applied to research & development. But it is not clear to me that IP protection is bad in-and-of-itself and that the obstacles that IP protection creates opportunities for companies to excel, innovate and surprise us with what they come up with. So I'll keep track as the trial progresses and hope that the outcome doesn't do too much damage to our economy. But more importantly, I'll keep my pencil lead firmly on my sketchbook hoping to push the boundaries of interaction design.
Who we do need to acknowledge in all this is "the little guy." The garage inventor, ironically where Apple started, has little stake in the current IP protection system. With the high cost and long delays of getting a software patent today coupled with approval rates as low as 8% there is little reason to expect that your patent would make it through the process. Then the costs of defending a patent are so incredibly high, making the entire process as an almost decadent part of government only privy to the most elite corporations in the world.
The system is required for sure, but it is also most certainly broken. A world without IP protection is not one I'm willing to live in, but I am also acutely aware as I'm entering this maze as part of a new startup I'm helping to co-found, that the complexities of technology are making it increasingly difficult to keep on protecting intellectual property at all.
About Dave Malouf
Dave Malouf is a 20-year veteran interaction designer. Dave's career passed through the corporate offices of Motorola, EMC, AT&T, SONY, a host of now dead B2B startups, and a few living ones as well. After a short detour that he loved in teaching interaction design full-time, Dave is now entering the startup world with his company Peer Loft, which is creating the new digital studio collaboration environment. Dave is also principal of his own consultancy, Dave Malouf Design where he is eager to bring his thinking and experience of design and technology to companies interested in bringing the studio environment and culture into their creative practice with the goals of increasing innovation, learning, and the quality of team outcomes.
Dave writes and speaks about issues of design strategy, interaction design, design research, and other topics. He continues to teach workshops around the world which helps feed his very voracious appetite for travel, languages, photography, food and adventure.