Protecting User Interfaces By: Mike Krause

Step #1 Don’t get a job

What is a UI from a legal perspective? Sound, graphics, pull-down menus, help text, commands, icons, mice, keyboards, etc.

How do I protect a UI? Intellectual property covers 4 areas Patent Trademark Copyright Trade Secret All but trade secret can be used to protect a UI

Patent Protection Constitution gives Congress the power to promote “Science” and the “useful Arts” by granting “Inventors” rights in their inventions “for limited times”.

Considered the strongest protection Must meet three major requirements: Patentable subject matter Novel Non-Obvious

Patentable Subject Matter The Supreme Court has said “anything under the sun that is made by man” No mathematical formulas, laws of nature, etc. Human DNA sequences???

Novelty Cannot be anything previously existing Must be new

Non-Obviousness One “skilled in the art” would not find the advance to be obvious to make No trivial add-ons

What gets patented? PTO requires a splitting of functional and nonfunctional elements embodies with the computer software. Not going to patent your hash table

UI example patents Typically claim UI functionality as a method of operating a programmed computer Types of help screens “flipping pages” “pop-up” hints Menu driven UIs

Look and Feel Can protect if it is functional (ex. controls a number of application programs) Can refer to a particular “selection and arrangement” of the UI’s method of operation

The key? Functional aspects of Uis, described as methods and systems of operating a computer provide statutory subject matter.

Copyright Protection Seeks to promote literary and artistic creativity by protecting “writings” of “authors” for limited times. Must be “fixed” and “original”

Originality Must contain a modicum of Computer programs are considered to be literary works

What does it protect? It only protects the actual code itself from being copied But, it has been used to protect things like games in the past

UI Perspective Want protection for: Individual elements (icons, graphics, or help text) Compilations of information (arrangement of menu commands) Overall “look and feel”

Individual Elements Apple was unsuccessful in protecting icons for virtual trash can, etc. from Microsoft. Were held too functional or lacking in originality Applied a utilitarian lmitation on copyright protection

What survived? Detailed nonfunctional graphics Detailed help text

Selection and Arrangement Applies the idea/expression dichotomy: © only protects the expression and not the underlying idea. The command menu of Lotus was found to be copyrightable subject matter, but doesn’t seem to overcome the utilitarian limitation

Look and Feel Attempting to protect an entire UI Has not yet been successful in court Again, Apple sued Microsoft on this theory unsuccessfully. Called it too “Mac-like” and simply”mimicked the composition, organization, arrangement and dynamics of the Macintosh interface”

Apple lost Because of the utilitarian distinction Plus the fact that Apple stole that interface from Xerox anyway

Protecting Macros Copyright was used in this context for Lotus v. Borland’s Quattro product. Protecting the code or the interface?

Trademark Protection Trade dress aims to protect the consumer from use that creates a likelihood of confusion or deception about the affiliation, approval, association, or sponsorship of the goods of another.

Look and Feel Thus, it is argued that this is a good way to protect the look and feel of a UI Courts have been reluctant to apply this

Sega!!! Accolade reverse engineered Sega cartridges to work on other consoles, but left in the security key so that the game displayed “produced by SEGA” when the game was started. While this was a violation of unfair competition it was not found to be trade dress infringement

TM Dicta Only in dicta have Circuit Court’s recognized a utility for trade dress protection for UIs.