Functionality and Graphical User Interface Design Patents

54 Pages Posted: 15 Aug 2013 Last revised: 6 Mar 2014

See all articles by Michael Risch

Michael Risch

Villanova University Charles Widger School of Law

Date Written: February 27, 2014

Abstract

Modern designers of graphical user interfaces, or GUIs, have obtained design patent protection for creative computer software displays, a realm previously limited to copyright. The difference in protection is important because design patents do not traditionally allow the same defenses — like fair use — associated with copyright. Apple’s nearly billion dollar judgment against Samsung, which included such a GUI patent, brought this issue to the forefront.

This article answers three emerging questions:

1. Aren’t GUIs something that should be protected by copyright only? Why should there be a patent? The answer is relatively simple: the law has, since 1870, contemplated dual protection. The article traces the history to explain why the law could have evolved differently, but simply did not.

2. Display screens change, both before and after sale. How can someone patent an ephemeral screen design? It also turns out that ephemeral designs have been protected for some time. Even so, the article proposes some limitations on the protection of GUIs that should address the special nature of GUI design patents.

3. There are many differences between Apple’s patent and Samsung’s product. How can Apple own the idea of square icons in a grid with a dock bar at the bottom? This last question is the most intractable: determining when a design is infringing, and the role that functionality should play in that consideration. The bulk of the article is dedicated to answering this question.

To answer the third question, the article draws on lessons from prior copyright disputes about GUIs. It first suggests that courts must act as gatekeepers, rather than allowing juries to determine which elements to disregard as functional. It then develops economic factors that can help the court determine whether a design element is functional, and whether to allow reuse by a competing program.

Keywords: graphical user interface, GUI, patent, design patent, copyright, economic analysis, ephemeral

Suggested Citation

Risch, Michael, Functionality and Graphical User Interface Design Patents (February 27, 2014). Stanford Technology Law Review, vol. 17, p. 53 (2014); Villanova Law/Public Policy Research Paper No. 2013-3058. Available at SSRN: https://ssrn.com/abstract=2310132

Michael Risch (Contact Author)

Villanova University Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

HOME PAGE: http://www1.villanova.edu/villanova/law/academics/faculty/Facultyprofiles/MichaelRisch.html

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