Is interactive design becoming unpatentable?
If 20th Century design was inspired by American architect Louis Sullivan’s 1896 pronouncement that “form ever follows function,” the key realization thus far of the 21st Century has been that this is merely a necessary – rather than a sufficient – condition for quality designs to flourish.
We have learned, and the market has confirmed, that an object should be designed in accordance not only with how it functions, but moreover with how it should function. Especially in the case of interactive technology, a description that has grown to describe just about anything, an object should function the way its user expects it to function.
As technology has become more powerful and flexible, the task of matching function and expectations has undergone a change akin to the philosopher Immanuel Kant’s metaphorical Copernican Revolution. For older generations of technology – in which scarce resources limited both what functions were available and the maximum complexity of users’ commands – the steps necessary for users to extract and refine what they could do with a device were explained in thick manuals. The prevailing strategy for more recent generations of technology has been to meet users halfway, competing to efficiently perform functions and effectively implement concepts that users have been had led to expect.
Today’s designs, however, are increasingly able to cut out the middleman, more and more closely conforming to their users’ preexisting intuitions and thought processes and less and less asking users to make those thought processes conform to products’ capabilities.
In other words, the key to success in modern interactive design does not lie in “creating” the best design possible. Rather, it begins with doing the best possible job of stripping designs down to concepts and procedures with which the user is already familiar, preferably through everyday use. Where there is no alternative but to require more input from a user, his or her options are laid out in terms the user already can be expected to know. While the fusion of design and utility has not yet been perfectly realized, industry has become more fully aware of both parts of this process and continues to pursue integration in earnest.
This coevolution of design standards and procedures has clashed, and continues to clash, with the structure of U.S. patent law. The first problem is the potential uncertainty that surrounds the scope and strength of a design patent’s protections. Even in the paradigm case of a design feature that has been aesthetically improved beyond what was required to give the feature its functional attributes, there remains the potential for overly broad claims about what aspects of a design qualify under the law as “ornamental.”
Under section 284 of the U.S. Code’s Title 35, triers of fact may award “non-statutory” damages for infringement of a design patent. But these same judges also may err in determining how much of an object’s value comes from the aesthetic appeal of its ornamental features and how much comes from other sources of value, whether ornamental or functional, and whether patented or unpatented.
The risk of error at each stage of the process – from the initial design patent application to the ultimate test of infringement in court – creates at least some incentive for a designer to overstate his or her case. Fortunately, these incentives are similar to the temptations to make overly broad claims about other grounds for patentability. Regardless what grounds are at issue, the remedy inevitably is better training for examiners and judges in traditional design standards and greater vigilance on their part about those standards’ application.