Hasta La Ideas

*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).

Even outside the courtroom, people may be paying more attention to existing design patents when developing new products. Notably, while Apple and Samsung are still locked in litigation over the design of Samsung’s Galaxy II phone and Galaxy Tab, Samsung openly admitted that a goal of the design of its successor Galaxy Nexus phone was to be different enough from Apple to avoid even a hint of future design patent issues.

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*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.

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Image courtesy of Michel Boot, Delft University of Technology

This is the second article from Dr. James Self exploring designers’ approaches and tools in support of a thoughtful, reflective design activity. You can read the first piece, “CAD vs. Sketching, Why Ask?” here.

Design practitioners are well-aware of and indeed exploit uncertainty as a means to facilitate design thinking, innovation and creativity. As design intentions are explored through the use of designerly tools such as sketching, design activity remains divergent, iterative and uncommitted. This ambiguous uncertainty facilitates design thinking and the exploration of often ill-defined design problems. In short, there exists a unique relationship between uncertainty and design activity. Because to design is to engage with an exploration of ideas towards the yet to be. Understanding this relationship is important if we are to develop our understanding of what it is to design.

So, what is uncertainty and what contribution can it make to design activity and design thinking?

In order to understand uncertainty as it relates to design activity it is important to first attempt to define it. The Oxford English dictionary offers the following definition:

This suggests uncertainty is a human state or emotion, a reaction to situations that are or appear to be unknown or unclear; the ambiguous. This definition of uncertainty has implied negative connotations—the natural response to uncertainty is to employ a course of action with the purpose of resolving the uncertain state; to seek the truth. In the natural sciences, where the objective is to understand the world as it is, this makes good sense. Through scientific enquiry we discover truths about our natural world. We are able to develop an understanding of how the world is.

But what if our purpose is to develop strategies, ideas and thinking towards that which does not yet exist? How should uncertainty be approached and what can this then tell us about the unique nature of designerly ways of knowing? Before addressing these questions it is worth spending a few moments to consider the slippery subject of what it is to design.

It has been well documented in previous attempts to define ‘design’ that the word immediately throws up challenges in coming to a consensus of its use and meaning. Ironically, the meaning of design remains uncertain! This is not the time or the place to engage in a discussion of the various semantic meanings of the word. However, for the purposes of our discussion of uncertainty in design activity, we will refer to the word design as a verb; as in to design—we are referring to the activity of designing. We can also say that the act of designing has, at its core, a requirement to adapt an existing system, process or object in a new way or to describe a new system, process or object. The designer is a futurist—they must explore, develop and present concepts and ideas towards that which may be, but does not yet exist.

So engagement in an activity of design is characterised by the exploration of the yet to be. As a result of this, design activity involves engagement with not only the unknown, as in the pursuit of knowledge in the sciences, but that which cannot be known because it does not yet exist. It is because design activity involves an exploration of the yet to be that design is unique in its relationship with uncertainty.

Related to this uniqueness, design problems may be described as ill-defined or wicked, where the solution to the problem or outcome is unknown or unclear at the start of the process. There may be more than one ‘correct’ solution to any given design problem. The designer’s role is to explore alternatives, finally coming to the specification of a best or optimal solution.

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We can’t believe that Dave has been on the road for a month straight and he’s saved the best for last. After wrapping up things in Chicago, Omaha and Madison, he’s humming in the Motor City. Keep up-to-date with all of the adventures on Route 77 by following @DaveSeliger on Twitter!

Day 33

Of all the cities I visited on my trip, I was most excited to see Detroit. However, it would be too easy for this article to reinforce the status quo when it comes to talking about Detroit. Sure, I could write about Michigan Central Station which has come to serve as the de facto symbol of Detroit’s landscape of abandoned buildings. (It really is a sight to behold, especially when you come across it in the dead of night like I did.) I could write about the plan to shut down streetlights or that whole Robocop / Kickstarter thing. Instead, I’m going to introduce you to some of the absolutely amazing people I met in Motor City, because the new definition of Detroit is based on the people not the city.

I stopped by the Detroit Creative Corridor Center (DC3), housed in the College for Creative Studies, to understand the current context for design and designers in Detroit. The goal of DC3 is to spur economic development by “presenting assets that are uniquely Detroit,” to advance Detroit creatives, and to leverage design to help solve the “deep challenges” of the city. In reality, this means the Center acts as one part business incubator, one part ambassador, and one part party planner. DC3 also happens to know everyone and everything involved in design in Detroit.

Detroit Creative Corridor Center’s Matt Clayson, Jacqueline Kirouac, Adrian Pittman, Shane He, Melinda Anderson, and Bethany Betzler

Back in 2006, Business Leaders for Michigan gathered to map the assets for Detroit and surrounding areas as a way of galvanizing the region. Creative talent was high on the list, but retaining and attracting that talent was a problem. Then 2008 hit. Although the atmosphere in the city “eventually stabilized,” there are still physical and psychological barriers to developing the creative community in Detroit into a healthy and flourishing one. In order to take the first step in overcoming these challenges, Matt Clayson, Director of DC3, is asking the question, “What are the big deficiencies that prevent creative talent in Detroit from telling their stories?”

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Now that Dave has traveled from coast to coast, he’s headed back East, with several stops in the top half of the country. Portland was a blast, but now it’s Mountain Time: the first stops on the way back are Denver and Boise. Keep up-to-date with all of the adventures on Route 77 by following @DaveSeliger on Twitter!

Day 25

After surviving the craziest thunderstorm I have ever driven through, I finally arrived in Denver, CO to visit Maura Gramzinski and Mark Veljkovich at Red Camper, a hand-made bag company with an interesting twist. “I was the child of two major hippies who traveled a lot when I was a kid in a red camper,” said Gramzinski. When Gramzinski’s grandparents passed away some time ago, the one-time photographer inherited her grandparents’ 35mm slide collection from their numerous journeys around the world. A creative impulse led to a handbag made from the slides Gramzinski and her family had deemed not worth keeping. This handbag, with a little prodding from an industrial designer boyfriend, led to conversations with a waterbed company that resulted in a proprietary process for sealing slides inside plastic sheets that could be sewn together into a bag.

Red Camper’s Maura Gramzinski and Mark Veljkovich

The prototype bag

Gramzinski finds slides at auctions and estate sales or even bought by the pound on eBay. And, no, Gramzinski is no longer using her grandparents’ slides, as she is quick to point out. However, since her slide handbag project has gained fame on the Internet, Gramzinski receives packages of slides in the mail, with some requests for the slides to be included in the bags. “I want the collection of slides to tell a story,” said Gramzinski, whether a fictional one or one actually from someone’s past. In a strange way, this makes me think of Instagram, if not the physical versions of memories that Instagram is helping to replace.

Beyond the inclusion of slides, the most idiosyncratic part of Red Camper’s product lines are the naked ladies. “My grandfather was a jokester,” said Gramzinski, “and in every slideshow there would be at least five naked ladies sporadically placed throughout to make sure we were paying attention.” Gramzinski had duplicates made of eight of her grandfather’s naked lady slide collection in order to include one in each of her handbags. “It’s about having a sense of humor and curiosity,” said Gramzinski. Unfortunately, it is becoming increasingly difficult to find film developers to make the duplicated slides since many consider it pornography.

Although handbags made from slides was certainly the idea that prompted the creation of Red Camper, it is only the beginning of the studio’s product offerings. Laptop bags, made out of vintage car upholstery, came next, continuing the thread of road trip nostalgia and story, while greeting cards highlighting “awesome slides that might be overlooked” serve as a gateway product for Red Camper. Yet there is a worry that Gramzinski and Veljkovich will be “pegged as the slide people.”

Red Camper has a larger mission beyond simply making products, though. “The idea of going somewhere and bringing home a souvenir has turned into buying something cheap and Chinese,” said Gramzinski. She has a point. Why go visit a state on the other side of America just to buy a bunch of trinkets that were not even made in this country? I have made it a point to not buy many souvenirs on this road trip, because souvenirs take up precious space in my car (although I am very thankful for all the swag from the firms I’ve visited.) Of the few things I have bought so far, one of my favorites is a vintage tie with a felt monster sewn onto it by a local artist in Tucson, AZ. So, in Gramzinski’s version of my souvenir experience, “Why not a hand-tooled belt from Tennessee and then you would be able to tell the story of that creator and have it mean something?”

Gramzinski described the future of Red Camper as a series of partnerships with local artisans and craftspeople to create products that are “representative of a certain region” within the US in order to “connect something you bought with where you bought it” and to tell that story. “I want it to head to the point where Red Camper covers the segment of American travel and souvenirs,” said Gramzinski, “but nothing cheesy.” The idea is certainly one I welcome.

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