It is very frustrating that the rationale of a legal mechanism such as patents, intended to enable inventors to recover from their creative efforts, the investment of time and of financial resources that they have put into the development of new and non-obvious inventions, and therefore promote innovation, has been subverted for the monetary compensations it entails when infringement occurs.
Patents confer an exclusive right upon their owner, enabling him to exclude others from making, using, importing, and selling the patented innovation for a limited period of time and making the practice of those acts by third parties dependent of an authorization of the patent owner, i.e., a license.
In this context, patents are intrinsically linked to competition. A particular concern is to not attribute such an exclusive right to creations that do not amount to an invention, i.e., based upon a basic or common function which does not contain any inventive step considering the prior art. Indeed, patenting something that is elementarily required to produce a given functionality would amount to conferring to the right owner a monopoly that would prevent any further competition and, consequently, future innovation.
In the computer software context, considering that most patents are conferred for very restricted elements of a given product, a particular danger is the development of patent thickets, which can be described as a web of interdependent and overlapping IP rights which require new inventions to depend upon licensing from different patent owners. This is so because it is possible to own a patent on an element crucial for the proper functioning of other parts of a software product.
Understandably, patent trolls can find here the greatest of motivations.
It is important to distinguish, in this context, design patents and utility patens, with which most of us are more familiar with.
Utility patents are meant for new, non-obvious and, as their name might have you guessing, useful inventions, having into consideration the specific functionality of the product.
By contrast, design patents address new, non-obvious, non-functional, aesthetic or ornamental aspects of products, provided that the design is not exclusively mandated by the function of the product. In practice, this amounts to demonstrate that alternative designs enabling the same function exist. Therefore, these patents are often associated with the ‘look and feel’ of the product.
As with any other patent, the exclusive right conferred by design-patents aim to prevent competitors from copying another company’s products designs. Hence, these patents assume particular importance when a product presents key features which enable consumers to immediately associate a design with a particular brand.
Design patents have been particularly popular in the field of computer software, namely in regards of the user experience and user-interfaces. From what I have had the chance to learn last trimester in the respective module of the post-grad program I am currently undertaking, I would risk saying that computer software patents do not really need any more complexities added to them. In fact, I am still recovering from the European Patent Office’s case law regarding what constitutes the proper technical character of an invention.
Thus said, a design patent was at stake, among other claims, in the Apple v. Samsung case regarding the ‘slide-to-unlock’ patent, describing a way to unlock a touch screen device. I still fail to comprehend how taking the general existing logic of opening gates, doors or fences and applying it to a computerized device passes the assessment of the inventive step test.
Similarly, just recently, among other allegations, Microsoft claimed that its patent over the design of a slider, which it named “User Interface for a Portion of a Display Screen” and which allows users to zoom in or out of documents, has been infringed by Corel.
Just so you get a complete idea of the claim, you can find below the design at stake:
In its defence, it must be noted that the patent claim does not refer to a generic slide, but to the specific design of the slider and its placement in the bottom right corner of the User Interface.
Disregarding the consideration if the design at stake qualifies as new and non-obvious version of existing designs (i.e., prior art), such claim – if successful – might have serious economic repercussions for Corel as it will entitle Microsoft to all of the profits attributed to that design even if respecting a part of the product and not the entire product.
Nevertheless, the Electronic Frontier Foundation (EFF) has qualified this claim as the most stupid patent of December 2015. And despite any good will one might want to manifest in favour of Microsoft, it is indeed difficult to escape the obviousness of all this nonsense.
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