A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office... What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.
It turns out there are three specific types of patents.
- Utility patents - for useful processes, machines, articles of manufacture, etc
- Design patents - for new, original, and ornamental designs
- Plant patents - for the invention or discovery and asexual reproduction of any distinct and new varity of plant
I'm pretty sure plant patents aren't relevant to our discussion so that leaves us with utility and design patents.
The difference between design and a utility patents?
The USPTO addresses this in their guide to design patent applications:
In general terms, a “utility patent” protects the way an article is used and works (35 U.S.C. 101), while a "design patent" protects the way an article looks (35 U.S.C. 171). Both design and utility patents may be obtained on an article if invention resides both in its utility and ornamental appearance. While utility and design patents afford legally separate protection, the utility and ornamentality of an article are not easily separable. Articles of manufacture may possess both functional and ornamental characteristics.
I would think that any web application interface would have both design and utility components ("look and feel", anyone?). A dropdown for example has a certain look/design, but also very specific way it is used/feels.
A patent search for "look and feel" returns 3,799 results and a search for "user interface" returns 80,439 results. It must be searching the entire body of the patents as I don't see those terms in the titles returned. Warning, the links are SLOW if you choose to follow them.
Although weak, design patents do give you the ability to use the coveted terms “patent pending” and “patent issued,” as is appropriate. I have encountered many individuals who are only interested in a design patent for this very marketing purpose.
I have also heard several others say this same thing: that design patents themselves are the weakest kind of patent. The ipwatchdog.com article does go on to say that design patents can become formidable if acquired in bulk or mixed with utility patents:
If you have 10 or so design patents on similar variations you harness the power of a portfolio rather than relying on any single patent. If a competitor were to want to step in they would have to get around 10 weak patents, a task that is not very easy to do in many cases. Similarly, if you have a utility patent, one or more design patents (preferably several) can make a nice, economical way to expand exclusivity through the leverage of a patent portfolio.
Evidentially with patents less is not better. :-)
If you're wanting to read more on the subject wisegeek.com has also written on the difference between design and utility patents and provides some examples of each type:
For example, designer eyeglass frames, the original Coca-Cola bottles, and "Pet Rocks" would have all been protected with design patents.
For example, going from LED technology to OLED would call for a new utility patent. ... Other examples would be a better carburetor, a new type of self-fastening diaper or a new recipe.
The USPTO itself defines design pretty specifically.
If you're curious here are some real life patents:
- D472,245 - We claim the ornamental design for a media player, substantially as shown and described.
- D523,441 - The ornamental design for an icon for a portion of a display screen, as shown and described.
- 7,372,473 - Zooming controller
- 7,370,216 - Conserving power by reducing voltage supplied to an instruction-processing portion of a processor
37signals and Patents
As far as I know 37signals has never claimed to hold any patents. An online search of U.S. patents seems to also support that 37signals holds no U.S. patents. If anyone knows of any patents (or if any of the 37signalers have their own patents) please let me know and I'll update this section. There is also the small chance I'm using the USPTO search mechanism improperly.
It seems that if 37signals were to acquire multiple design and utility patents on their "look and feel" they might begin to find themselves in a position to "exclude others from making, using, offering for sale, selling or importing" similar designs or a similar look and feel.
I'm not suggesting they start acquiring patents. Just saying.
I had a suspicion patents would be relevant to our discussion and I think they have been; but now it's time to move on. Copyrights, up next.