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Are we burying our heads in the sand? Exploring issues around intellectual property rights in UX


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The threat of patent infringement to businesses is perhaps better known in industries such as pharmaceuticals, engineering and manufacturing. However, in the User Experience (UX) field there are potential issues around patent infringement that, as practitioners, we need to be aware of. This session (originally a discussion held at UX Cambridge 2014) aimed to increase awareness and start a discussion amongst UX professionals regarding intellectual property issues that may impact our work.

The session was an open discussion, where participants shared their experiences and concerns and posed questions for further exploration. The outcome was a sketchnote ( which summarised the discussion. This was created by Chris Spalton,

[Please note: we are not intellectual property legal experts. Examples are from our own experience in this area, and secondary research sources. The main aim was to start a conversation and to identify the gaps in our knowledge in this potentially important area.]

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Are we burying our heads in the sand? Exploring issues around intellectual property rights in UX

  1. 1. My name is Paula de Matos I live in Cambridge I am an Independent UX Analyst
  2. 2. @JenniferCham UX Researcher & Designer EMBL-EBI
  3. 3. Welcome to this ‘think tank’ Flickr: Andrew Becra:
  4. 4. Imagine... You are working for a small web-­‐applicaCon start-­‐up…
  5. 5. Sound familiar? “We don’t worry about design elements in our products unless someone raises it as an issue. It hasn’t happened yet!” Product Manager, Tessella (InternaConal AnalyCcs So:ware Company)
  6. 6. Sound familiar? “We wait unCl there is a problem to invesCgate. I don’t know what the law or our rights are. There is no clear informaCon provided by our company.” Editor, Digital Media Team
  7. 7. What about patent trolls? Flickr: crises_crs
  8. 8. Troll experience (not UX) “A friend of mine had a patent & someone bought exclusive rights to it for $30,000. The aim of the buyer was to use this patent to sue other companies that were operaCng in violaCon of it. The reality is, if a company has the patent you don’t have freedom-­‐to-­‐ operate!” Dr. Dominic Clark, EMBL-­‐EBI
  9. 9. What about you? Flickr: Eden, Janine and Jim
  10. 10. Are you burying your head in the sand? Flickr: U.S. Army
  11. 11. Flickr: JusCn Lowery What is the way forward?
  12. 12. What are the barriers for the UX community? Flickr:
  13. 13. Do you consider the importance of IP in your design process?
  14. 14. Most UX or digital design conferences do not include anything about IP, why?
  15. 15. Lobbying? Do we need/want be_er legal instruments to protect UX “invenCons”/”designs”?
  16. 16. But does the troll threat apply to UX…?
  17. 17. In Europe so:ware & methods are NOT patentable “Don’t panic!”
  18. 18. Direct quotes from EPO “Under the European Patent ConvenCon, GUI designs or UX techniques are NOT patentable. This also applies to most business methods. This is the reason that the famous "1-­‐click" patent that Amazon filed in the US cannot obtain patent protecCon in Europe. “Designs can be protected through obtaining a registered community design and/or trademark, if they fulfil the condiCons. In Europe these are granted by the Office for HarmonizaCon in the Internal Market (OHIM)” Director Info. Services Processing European Patent Office, The Netherlands OHIM: h_p://
  19. 19. Moreover… User interface design has: – non-­‐existent legislaCon in Europe – doubjul* base of legislaCon in USA * If Apple Inc. struggles to win in an IP ba_le then it means it’s hard to get water-­‐Cght protecCon for an “experience” or “feel”
  20. 20. Example – new gesture Use of gesture to trigger an acCon ✗ Not patentable in Europe & rest of world ? Possibly design patent in USA Ability of sensor to detect new gesture ✓ Patentable
  21. 21. Patents may be granted for business models and so:ware Patents are NOT granted for methods, business methods nor so:ware Design patents NO DESIGN PATENTS An interface design, logo or visual idenCty can be protected via OHIM. If a trademark/RCD is infringed proceedings are not as heavy as per patents, & happen in the country of infringement. ‘AngloSaxon style’ case law for IP (based on past precedents) ‘European-­‐style’ strict definiCons for patentability (novel, pracCcable, immediate effect, etc) Both have IP laws defined before computers so have not kept pace with suitable legal instruments & Cmescales.
  22. 22. Quiz quesCon: What does UX have in common with pre_y plants? Flickr: MarCn LaBar Answer: Design patents!
  23. 23. Example of US “Design Patents”
  24. 24. The famous: “Amazon 1-­‐click”
  25. 25. USA is a special case so… “If you are planning to have market share in USA, try patenCng to protect interfaces as a “design patent” with USPTO, but this protecCon applies only in USA not in Japan, Korean or anywhere else. And even if you get a design patent it is doubjul to stand up even in USA.” Director Info. Services Processing European Patent Office, The Netherlands
  26. 26. USPTO and GUI Design Patents USA Patent and Trademark Office has “design days” h_p://
  27. 27. So what are the IP opCons in Europe? • Patents protect technical invenCons in all fields of technology • Designs specify how products look (ie. industrial design) • Trade marks signal the origin of products to consumers • Copyright relates to arCsCc creaCons, such as books, music, painCngs, sculptures and films
  28. 28. Patents New (absolutely novel) InvenCve step Industrial applicaCon Sufficient disclosure (to person skilled in the art)
  29. 29. What cannot be patented in Europe? (contrary to morality)
  30. 30. h_ps://
  31. 31. Trade Mark ‘any signs capable of being represented graphically, parCcularly words, including personal names, designs, le_ers, numerals, the shape of goods or of their packaging, provided that such signs are capable of disCnguishing the goods or services of one undertaking from those of other undertakings.' ArCcle 2, DirecCve 2008/95/EC of the European Parliament and of the Council
  32. 32. Designs • 'The appearance of the whole or a part of a product resulCng from the features of, in parCcular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentaCon'. ArCcle 3 of the Design RegulaCon • Almost any industrial or handicra: item can be eligible for design protecCon (except for computer programs)
  33. 33. Try these steps... • Gain an understanding of patents – InteracCve videos & online mini tours (see later slides) • Read some UX-­‐related patents yourself • Review patents during your creaCve process
  34. 34. Understand IP yourself EPO’s InteracCve Patent Info. Tour h_p://­‐tour/tour.php
  35. 35. Includes mini videos, “did you know?” trivia, and quizzes
  36. 36. OHIM videos to explain concepts/fees e.g. Designs: h_ps://
  37. 37. OHIM videos to explain concepts/fees e.g. Trademarks: h_ps://­‐marks
  38. 38. Freedom-­‐to-­‐operate? • A clearance opinion is a legal opinion provided by one or more patent a_orneys as to whether a given product or process infringes the claims of one or more issued patents or pending patent applicaCons. • Clearance opinions may be done in combinaCon with a "validity and enforceability" opinion. A validity and enforceability opinion is a legal opinion as to whether a given patent is valid and/or enforceable. • A validity opinion is a legal opinion or le_er in which a patent a_orney or patent agent analyzes an issued patent and provides an opinion on how a court might rule on its validity or enforceability • Validity opinions are o:en sought before liCgaCon related to a patent. • The average cost of a validity opinion (according to one 2007 survey) is over $15,000, with an infringement analysis adding an addiConal $13,000. Wikipedia quote
  39. 39. Info from EPO website
  40. 40. Info from EPO website
  41. 41. OHIM Learning Portal h_p://
  42. 42. h_p://
  43. 43. Nice blog on all things “patent” h_p://
  44. 44. ArCcle on PulseUX Blog h_p://­‐v-­‐samsung-­‐implicaCons-­‐for-­‐product-­‐ design-­‐user-­‐interface-­‐ux-­‐design-­‐so:ware-­‐development-­‐and-­‐the-­‐future-­‐of-­‐high-­‐ technology-­‐consumer-­‐products/