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This is the first of two installments about how agency work is evolving to become part of the IP conversation. Part 1 will be a basic overview of the relevant legal terrain, while Part 2 will address why we should care.

 

After the recent squabble between social product development company Quirky and OXO, I’ve been pretty fascinated by intellectual property issues and, well, patents. I find this dispute much more interesting than the ongoing Apple vs. Samsung battle because it has played out in the real world, rather than behind closed courtroom doors, and the conversation has been (largely) in laymen’s terms not legalese. Also some of the language used reminds of Mean Girls! But hopefully I am not alone in my dorky fascination, nor in my realization that – crap! – there’s a lot about the current state of intellectual property that I don’t exactly understand…especially as more and more of these disputes center around the very technology that we as agencies are not only using but starting to create.

If you didn’t follow this wannabe debaucle, Quirky accused OXO and partner SmartDesign of stealing an idea: a dustpan with teeth to comb out the gross fuzzies that stubbornly stick to the bottom of a broom. Quirky’s model beat OXO’s to market by two years and the designer had shopped it around to various companies, including OXO, years back. The accusation came in the form of a “campaign” that included marching protesters and hanging a huge banner outside Quirky’s New York City offices. OXO calmly countered that the design element in question – the “comb” – had been patented in 1919 and that after its expiration 20 years later, the idea was now property of the public. Basically Quirky tried to pull a David vs. Goliath, while OXO articulately and politely pointed out reality.

Quirky followed that up with self-galvanizing blog posts, an appearance on “The Tonight Show” one week later (showcasing the dustpan among other products, with no mention of the hoopla), and – hooray! – increased awareness. OXO also got a boost in social, as people discovered they have a Facebook page.

Back to the point of this post. Most people have a general idea of what patents are – they protect some type of invention. Intellectual property. But what constitutes legally protected intellectual property? Is it the idea, the created thing itself, or a part of the thing? And what about digital – interfaces and the like? We all know the law is constantly playing catch-up to technology and we have a general sense of what is going on in the news, but what are all the various claims and lawsuits flying around really about?

For starters, here is a quick U.S. Patents 101 cheatsheet: there are two kinds that are relevant to this discussion – utility and design.  Feel free to click the below links if you prefer to subject yourself to legalese.

Utility patents protect the way an item is used or works. They can cover many different variations under one application even if they were not included in the original claim. If a competitor makes some minor tweaks to your invention to create a similar product, you can sue the bejesus out of them. The function must provide beneficial and practical use and be operable; it cannot be linked to common sense, meaning if anyone familiar with the technology and precedents (prior art) would have come to the same conclusion then the patent can be challenged. The legal definition of “utility” has recently been extended to cover non-tangible objects such as procedures and processes (ex: business methods). Utility patents provide protection for 20 years but they do not cover any ornamentation (see design patents). “Cool ideas” are not eligible, so applications for perpetual motion and time travel will be chucked. Software patents tend to be a subset of utility patents, but present their own can of worms because you can’t patent algorithms as math belongs to the public. Really?

Design patents cover only the appearance of products, regardless of function. Such patents are granted if the design is “novel and not obvious for all items,” meaning nobody could ever have patented the roundness of a tire because, duh, the shape is what makes it work and there is prior art – the wheel predates the tire, and it too is round. Design patents provide protection for 14 years, but are are easy to circumvent through slight ornamental modifications as each can protect only one specific look. A competitor could claim “mine has rounder corners than yours, and is less square in shape, so it’s not exactly the same.” Also, design patents can be invalidated if someone proves the design is actually useful. Go figure.

 

Fun fact: Did you know the Statue of Liberty was patented in 1879? It was a design patent.

Now that you can overanalyze every tangible thing in sight, imagine moving from the physical to the digital world – try to figure out what is design vs. utility on and behind a screen.  In comparison to Apple vs. Samsung, Quirky vs. OXO battle is much easier to understand – we all know how to sweep the floor, so only the comb is in question. But when we apply the law to digital – to interactions and interfaces – things get dicey. Interaction design patents have been on the rise for quite some time, but how do you classify them when the laws haven’t been updated to reflect what’s going on today? Interfaces encompass both aesthetics and function, yet the patent structure requires separation for protection. But before that point, you’ve got to figure out how much of the invention qualifies as the interface vs. the technology (and if you can even protect that particular piece of technology).

One way to think about it is a door handle. The mechanisms that might keep a door shut, allow it to be opened, and keep it locked are the technology elements. The interface is how you use the door – do you interact with a door knob? A latch? Buttons that create a security code? A palm scanner? After going through that exericise, discerning which parts of the interface and required interactions are design, utility, both, or neither requires more overanalysis. Clearly there is confusion about that even at the highest level, based on Apple’s late summer courtroom victory followed four months later by tentative patent invalidations. There’s plenty of bickering over what is obvious and novel.

So now that we’ve got a slightly better understanding of how patents work, stay tuned for Part 2 when I explain why this matters to agencies as they broaden their reach.