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We
are going to see a lot more Interaction Design Patents approved
in the US and possibly in Europe. The Amazon "One-Click"
Patent and the "Affiliate Program" are just the beginning.
Things will get a lot worse before they get better. Here's why.
"Why
should we unilaterally disarm, when everyone else is walking around
with a smoking gun?" was one recent colorful metaphor used
in defense of Jeff Bezos and Amazon.com. What exactly did that mean?
How
to Patent an Interaction Design
Over
the last few weeks, I have been getting familiar with modern Patent
laws and US Patent Law. I once filed a patent back in the 1980s
for a software protection mechanism. The filing was only in the
UK and Europe and I ran out of money. Filing patents is a costly
business. It can cost up to 100,000 US Dollars to file a single
patent in the US alone. That's the first hurdle for the little guy.
Patents are by-and-large for the big guys who use them as trading
chips with other big guys and to prevent them from losing a market
to little guys - the innovative upstarts.
One
of the big problems with the software market and even more so, since
the arrival of the web, has been the low barrier to entry for the
little guy. The big guy [in the software business over the last
25 years] traditionally didn't have the ability to run and hide
behind intellectual property. This was a simple statement of fact.
Firstly, the patent legislation, in most of the developed world,
specifically excluded software and mathematical algorithms. In fact,
to be patentable an invention had to be capable of manufacture in
an industrial process. In this respect, the Patent Law was firmly
rooted in the Industrial Age and well behind the developing Information
Age.
Clever
patent attorneys had been able to sidestep this rule if they could
show that a software design could be implemented in hardware or
firmware. They could patent the technique as implemented in firmware,
then exercise the design purely in software but they could prevent
anyone from copying the technique. With these patents it was hard
to detect an infringement or take enforce measures. They gave the
creative patent attorneys limited scope and for the most part, software
designers like me didn't have to worry too much about Intellectual
Property. Apple Computer lost its case against Microsoft in the
1980s and we all went away thinking that design was just that -
"design" - and that Interface and what we now call Interaction
Design, were simply unprotectable.
The
law in Europe was considered sufficiently tight that this would
always be the case. The law in the US was always somewhat simpler.
In the US, you have to prove something called "novelty"
in order to qualify as an invention. In Europe, you have to prove
"inventive step". An exact definition of these terms is
well beyond the scope of this discussion. Suffice to say that "novelty"
is significantly easier to prove.
So
clever Patent Attorneys continued to bombard the US Patent Office
with "novelty" and gradually things changed. During these
years, I just wasn't paying attention, well I am now! In the mid-90s,
a bank that no one [in the software world] had ever heard of finally
got a patent for the process of calculating interest on a derivative
security. A patent on a "method of doing business" and
suddenly the floodgates opened.
Amazon.com's
"One Click" Patent isn't a patent on how the User interacts
with the System. It isn't an Interface Patent or an Interaction
Design Patent. It's a Patent about how the User does business with
the vendor. The "one click" is just a step in the business
process.
All
of a sudden, those very clever Patent Attorneys have a method for
describing Interaction Design Patents in a way which can get approved.
The law can state openly that "Computer Software ... is excluded"
but it is still possible to Patent "the method of doing business"
which includes the Interaction Design of a piece of software.
Within
months the US Patent Office was swamped with applications and has
been drowning rather than waving ever since.
Why
Patent?
There
are two key reasons for Patenting. One is protection against the
leaner, fitter, little guy who can eat your lunch on the web because
the barrier to entry is so low. If you are an 800lb gorilla and
you don't move so fast, and still want lunch to be there when you
get back from a snooze, then a Patent on the method of eating lunch
is a good thing to have.
The
second reason for Patenting is to have sticks and clubs with which
to threaten the other 800lb gorillas. Basically, this is more like
the "cold war". It's all about an arms race. A race to
acquire the most Patents. These are then brandished like clubs or
aimed like intercontinental ballistic missiles, at the other side.
No one wants to fire, they just want to trade them off and come
to a negotiated settlement. In other words, "the arms race
is all about defense"! Hence the reason why no one wants to
unilaterally disarm.
What
does it mean for Usability?
I
cannot feel anything other than the current Interaction Design Patent
Race means yet another blow for Usability. Potential neat, clean,
simple, usable systems are going to find that they need to be altered,
obfuscated or removed from the marketplace because they infringe
someone else's patent. Already we have seen a competitor of Amazon
has had to add an extra superfluous click to their purchasing process.
This move away from the optimum Interaction Design is simply to
avoid infringing a Patent.
We
have to ask, "is that in the Public Interest?" Actually,
the Patent Office is also obliged to ask such a question. The law,
at least as it stands in Europe, forbids the granting of Patents
which infringe the broader public interest. For this reason someone
might find that a filing for something as fundamental as the "wheel"
would be turned down. The reason being that the use of "wheels"
was already common place and it would not be in the public interest
to afford someone a monopoly in such a device for the next 20 years.
The
Patent Offices of both the US and European authorities need to start
asking whether Usability and a minimum number of clicks is not in
actual fact "in the public interest" or indeed "a
basic human right". Should the vendors of software systems
and services have the right to put difficulty in my way when I need
to use some service or the other? Do they have the right to increase
my stress level or force my brain to work harder?
The
answer to this question lies in the interpretation of the word,
"obvious".
What
does "Obvious" mean?
Probably,
"not what you thought it meant" is the correct answer.
And indeed, "Obvious" has a different meaning in Europe
than it does in the United States. The definition of "Obvious"
is what controls whether optimizing a User Interface or User Interaction
is in point of fact, "novel" or "inventive".
It
could be argued that a practitioner skilled in the art of Interaction
Design would deduce the optimal number of clicks to provide a service
or function using software. That optimum number of clicks could
be derived by following a known process such as Usage Centered Design,
or the Usability Engineering Lifecycle. Regardless of the actual
practitioner, the result ought to be the same. If the answer to
this is, "Yes, regardless of practitioner, the design was the
same." Then the resultant design is "Obvious" and
hence no Patent can be awarded.
It
is left to the eyes of the courts and the respective Patent Offices
to ask themselves this question with respect to Interaction Design.
They must determine whether given the same problem an Alan Cooper,
a Larry Constantine, a Deborah Mayhew, or a Laura Arlov would have
devised a sufficiently similar design that it was indeed "Obvious".
If
they fail to believe this, if they fail to believe that Interaction
Design is repeatable then they will conclude that Patents can and
should be issued for the very inventive, novel Interaction Designs
which lead to better, easier to use systems.
"Publish
and be damned"
Finally,
there is one possible option for the inventive Interaction Designer
who seeks not to fight but to disarm. In Europe it is easy. Simply
publish the work. Indeed, uidesign.net is a superb forum
for such work. So come on you European Interaction Designers, publish
your novel work here first.
But
wait, the US has a different law. In the US, there is protection
for the "first to invent". What that means is that you
can record an invention, then publish, and you can still receive
the Patent. So, even if someone publishes a great new Interaction
Design at this website, the guns are still loaded. There is nothing
to stop someone filing a Patent Application for that design.
It
would fall to the intention of the individual. If their intent were
to show that they mean to disarm, they could indeed record the invention,
then publish it, then simply never file the Patent Application.
By recording as "first to invent", then publishing to
set a "prior art" precedent, they would prevent another
person filing the patent.
Summary
The
truth, however, is that no one is brave enough to make the first
move and climb down. Arms reduction is not on the agenda. The 800lb
gorillas still require the negotiation power that a rifle of patents
gives them. So, much as I might like the notion that uidesign.net
could become an Innovators Gallery for new Interaction Design inventions,
it simply won't be happening any time soon.
uidesign.net
was set up partly to prove that Interaction Design is repeatable
and ought to be "obvious" to someone skilled in the principles
of the art. If uidesign.net is doing its job properly then
Interaction Design Patents should be impossible.
We
wait for the US Patent Office's next move.
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