VR Hardware and UI/UX: The next big thing in design patents

Google Cardboard - High Tech that melts in the rain. 

The internet teems with articles giving you the "20 next big things in X" or "15 reasons why everyone should know about technology Q." However,  most of these lists are really slim native advertisements for companies hawking all manner of kit and not really instructive on what the next big thing is going to be in any industry.

Luckily, I am here to tell you what the next big thing is going to be in a particular industry. I had the opportunity to go to Maker Faire this past weekend and take in the sights and sounds of what a low pretense, high diversity Burning Man would look like it if was hosted in Queens and had easy subway access. Among the automated pancake makers and drone suppliers, I kept noticing that what really stood out was the prevalence of VR (Virtual Reality Gear). VR gear was everywhere, not only in demo booths, but also strapped to the slack jawed faces of noobs and experts alike, usually through some jury-rigged cardboard contraption (as shown above).

VR Gear itself is a ripe for intellectual property protection. Usable VR gear presents a number of engineering and UX / UI problems that, when solved are like patentable inventions. Furthermore, just as in the Smartphone Wars (TM), the industrial design of one product versus another might spell the difference between a record shattering Iphone and an also ran Nokia. As such comapnies are going to be aggressive in patenting designs for hardware. Companies like Oculus Rift (Facebook acquired) already have pending an issued design patents cover the form of their VR headsets, and their products have not reached consumers yet.  

Occulus Rift Issued Design Patent on VR Gear. 

However, hardware is, well...hard, and designs for VR Gear are likely to be refined within the walls of engineering and design studios with massive budgets and expansive teams.  Neither of these resources are going to be available to the nimble, cash strapped, start-up.

On the other-hand, VR GUIs, i.e. the graphical display of information within the VR helmet, is the same sort of disruptive opportunity that garage tinkers, and lean teams have made fortunes on. Much like the design patents Apple Inc. received on its icon arrangement for the Iphone, VR companies will be looking to find the optimized, and proprietary, ways to display information to a user.

If one were asking me the "next big thing" is design patent law - I would say it is the race to develop and patent the most beautiful and intuitive VR UI this side of The Lawn Mower Man. In this race, the field is wide open.


  

Steampunk, Patents & IBM

Steampunk as a genera was set to explode in 2013.  For those who don't know the difference between steampunk, cyberpunk and retro-future, let me provide this definition. A common definition could be provided as a sci-fi / fantasy sub-genre based around Gothic machinery and the industrialized civilization of the 19th Century. However, it should be noted that the definition of Steampunk differs from adherent to adherent. The common elements are a heavy influence by the works of Jules Verne, the inventions of Nikola Tesla and Victorian fashion. The genera adheres a retro-futuristic style that puts critical emphasis on ascetics, at times to the detriment of function.

According to IBM (a retro-futuristic enterprise if there were one) Steampunk was set to evolve into a cultural meme, jumping cultural domains like some sort of mechanical fish. IBM came to that conclusion through the use of its sentiment analysis system which scans social media for "chatter". In this case, the chatter said that Steampunk is set to explode. This "steam explosion" will see the transition from "high-cost" low volume Steampunk inspired devices to mass market production. See there analysis here. 

Naturally giddy at the prospect of this explosion in felt hats and brass goggles, I fired up my ISPDR Terminal (More on this another time) and went looking for Steampunk patents. 

Unfortunately, the only issued patent that felt "Steampunk-y" is the above illustrated "gear-heart" pendant. U.S.P. 666116.  Some additional patent applications were directed to video games having a Steampunk feel, but no additional physical device. No giant steam powered spider-automaton diagrams, no difference engines powered by AEther. Just some odd electrode wielding walking sticks and some flogs. 

Of course, it is possible that all of the really fancy jewelry is being copyrighted and not design patented.  However, if you thought your designs were going to go mass market, and you were working in a genera as unique and ascetically diverse as Steampunk, why wouldn't you seek design patent protection.  

The general take away should be about focusing your development efforts to conform to some 10,000 foot analysis, as opposed to developing and IP portfolio which serves current business needs. Clearly, those high-cost low volume manufacturers are not having a problem with rampant infringement. Otherwise they would have masses of patents and pending applications. 

Chatter about trends, technologies, or concepts are just that, chatter. Even with powerful computer analysis it is difficult to determine the direction of technology and style. Therefore, you never know what ideas and technology might take off tomorrow. This makes it difficult to justify the costs associated with IP protection. However, the opposite is true too. One well placed patent might control the market, or a genera. A balanced IP portfolio strategy, based on real world feedback, is always the right style. 

Jordan Garner

Yuletide Patents: Reconstruction to the Long Depression (1860's to 1900's)

One of the reasons that I find IP Law so fascinating is the depth and breadth history that patent records provide.  Patents provide an alternative, focused history into the mindset of inventors and designers. Problem solvers and money makers have used the patent system for hundreds of years to disclose to the world their version of a better mousetrap. The patent office is a near perfect record of the changes that have taken place in design, manufacturing and technology.

This is the start of a series looking at holiday patents through the years.A trip through the patent office records will find patents on various weapons, vehicles, rocket ships and toys. The diligent observer will also find technologies directed to freeing man from the onerous chores that have plagued the human condition since time immemorial.

Of course, one of the plagues beset  heavily on the shoulders of mankind is Christmas decorations. Untold families have been torn asunder by arguments concerning the de-tangling of lights, proper Christmas tree display orientation angles and proper ornament positioning.

The following patents show that the issues around Christmas, the quest for easier decorations, for simpler trees, for time saving autonomous devices, has changed little in the last 150 years.


The featured patent at the top of the post is the earliest patent I could find which used the term Christmas.  Patent No. 18,238 was filed in 1868; and concerns a design patent on a particular figure for a Christmas tree ornament.

Slightly more recent, from 1881, Patent No. 237,026 describes a paper Christmas Tree decoration. As industry and commerce stalled during the Long Depression, the inventor, Mr. Kanuff probably hoped that his Christmas decorations would help life spirits as well the balance of his bank account.











Of course, nothing goes better with paper draped over a wooden, rapidly drying, vertical piece of kindling than an open flame. This is why Mr. Schroeder's idea, patented in 1903, for a "Candle holders for Christmas Trees" was likely a big hit.
















Possibly as a result of uncontrollable fires resulting from placing candles in Christmas tress, enterprising inventors sought to do away with the tawdry notion of an actual tree. Why fell a potential hazard when you can construct a safe tree with the tools of science. For example patent 255,902 describes an "Imitation Christmas tree"













Of course, no Yuletide celebration would be complete without the accompaniment of music. The modern era is complete with Ipads and Spotifys, belting out the latest Christmas versions of your favorite artists.

 Engineers of the later 19th Century had solved the problem of stored music, a perfect accompaniment to the roaring fire which is quickly engulfing your candle lit Christmas tree.

Reed Organs had been around for some time. However Mr. Metzger found useful improvements in the art of delivering canned Christmas music. All the elements are there of the modern electronic system of music. A recordable medium, a software instruction set, and a hardware amplification device.






Patent Office records provide a wonderful source of inspiration for designers and inventors. The technology illustrated in these patents still exists, only in more refined forms. Anyone who loves graphic or industrial design owes it to themselves to take a trip through the patent office records.

Jordan Garner

Product Design IP in the age of 3D Printers

Dieter Rams designed Coffee Maker

Intellectual property protection for industrial design and industrial designers has always been a fraught process. The nature IP does not lend itself easily to the tasks Industrial Designers might put to them. However, new technology might begin to change how Industrial Designers see Intellectual Property protection.

IP Limits

Conventionally, industrial design is protected through a design patent.  Design patents allows the designer to get protection on their purely ornamental design for 14 years from filing.  Unfortunately, this means that if the product has a functional component (enhanced ergonomics etc.) then the designer relinquishes that functionality, or they are forced to obtain the more expensive and time consuming utility patent. A utility patent covers the function of a device , process, compound or article of manufacturer. For example, a designer could hold a patent on the manufacture of a particular item. While this might successfully deter large scale copying, it does not prevent wide spread dissemination of the construction methods and processes.

Copyright protects artistic and literary works for 70 years, plus the life of the author. Text and audio-visual works are the primary focus of copyright. Once you move beyond the artistic realm into the functional, Courts have held that copyrights no longer apply.  However, the age of 3D printing might be about to change the rules of the game.

Charles Eames Design Patent 

3D Printing

For the uninitiated, a 3D printer is a device that builds an object, usually out of some resin, layers at a time. It is the electronic opposite of a very fine mandolin slicer. MakerBot, and companies like them are pioneering a way to have an "internet of things." The eventual goal would be a repository of templates for the production of all manner of goods, ready to be downloaded and printed, the way one might download a song and burn it to a CD [ed. do kids ever do that any more ?].

 The software used in 3D printers vary from device to device. However, they all use some form of stereolithography file to instruct the device on how to lay down layers of material. Once all the layers have been deposited, you should have a reasonable copy of object described by the file.

It should be apparent that 3D printing allows for the production of many useful things, it also allows for the re-production of industrial design elements without authorization from the original creators. Where 3D printing has created a problem, it might also offer a solution.

IP Incorporation into Designs



Since the procedures for manufacturing the item begins with a digital file. It is possible to encapsulate the design within the boundaries of Copyright law. If the software file, the instruction set for making a particular design is complete (that is, it does not require additional tooling, or minimal machining) then the software encapsulates the design.

It might still hold true that the tangible representation of the software (i.e. a chair or lamp) is not covered by copyright, the software code that executes the 3D printer is a valid piece of IP.  Therefore, the nexus of IP infringement of the design would occur when the digital file is copied (i.e. on a file share network). Thus, developing code for the 3D designs will become as important as the conceptual prototypes. Court are well positioned to hear arguments on the illicit trade and sale of pirated software. This presents an opportunity for Industrial designers and software coders to collaborate on clever implementations of the software to render the designs with minimal post processing. The closer the code is to representing the object, the stronger the case for infringement. Once the code base of a portfolio has been engineered, a simple licensing program [not in bitcoins!!!] (think Itunes) could offer people the world over the chance to download an use a particular firm's designs.

Alternatively, or additionally, a designer could include a structural trademark element. For instance, the design of a chair could,  incorporate a logo. In this instance, merely printing the object does not create a cause of action. However, once an unscrupulous manufacturer attempts to sell the copied design, they are engaged in trademark infringement.

There are likely more elegant solutions than these two for the potential problems posed by 3D printing. However, these solutions show that IP in 3D printing can be maintained and creators can be protected.

Jordan Garner

Why you had a hard time getting an IP job 2009

Not my children, but they raise an interesting point

There was [is] a misconception that "IP" people and especially "Patent" people land on their feet after a traumatic work event.

In most cases these traumatic work events are solitary affairs to be met with stoicism when they arrive, and laughed off once gainful employment is once again obtained.   Job loss, it should be noted,  is not uncommon. It is definitely not uncommon in late 20th / early 21st century America. In general this theory holds true, with a strong caveat concerning Bio-background patent prosecutors (a situation which I have addressed before). Engineering background IP practitioners have generally found it easy to obtain new employment.

However, at the tail end of 2008 and well into 2009 and beyond, there was a uncommon tightness in the IP employment market for all background. This tightness didn't comport with the conventional wisdom about IP.

Conventional wisdom held that IP slightly a-cyclical or even lightly counter-cyclical to the overall business market. If IP was influenced by the broader economy, it was the result of companies exploiting their IP to the full extent possible in a difficult market. This theory held that lots of new applications, litigation and diligence work would be generated in a mild downturn as people companies and organizations attempted to maximize license fees, infringement judgements and acquisitions.  Litigation and diligence can be the topic of a different post.

Here we take a look at the wisdom as applied to applications, and find it lacking.


source: http://www.theatlanticcities.com/jobs-and-economy/2013/10/where-americas-inventors-ara/7069/

As evidenced by the chart title, the above graphs the number of application filings by US inventors per year.  Instead of seeing a steady churn in work, we see an inflection point, then a steep and accelerating drop off until 2010.

What this chart shows is that "peak-application" (like peak-oil) hit sometime before anyone was actually aware a problem was brewing. As 2007 transitioned into 2008, the trend accelerated such that applications were approaching free-fall in by the end of 2008.

However, if people remember correctly, the Lehman Brothers Bankruptcy did not hit the news until September of 2008.  So this drop off was not the result of the economic collapse that erupted in the wake of Lehman, but was part of the systemic breakdown which caused it. While everyone was keeping their eyes glued to the "market", IP watchers should have been analyzing the IP "market".

The second chart below breaks this data out to the highest regional markets for patent applications.


As far back as 2005, there was a leveling off in the application filings. This would have been the point to consolidate and solidify staffing levels. Instead, 2007 saw some of the largest summer associate class sizes. New York suffered severely. From a pre-2007 height of  over 1,000,000 applications to a current number of just over 600,000; New York had seen a 50% reduction in filings. By 2011 the IP filing market was only 10-20 % off the lows.

A 50% reduction in patent work in New York means a lot less law firms getting paid, and a lots less associates on the firm's rosters.

What these two charts show is that triggering event for the Great Recession (Lehman Bankruptcy ) was not the triggering event for the decline in patent filings. The gears were already in motion back in 2006.  The reasons for the run up and crash are likely as varied as reasons for the crash in the broader market; over-supply, irrational belief that history always points upward, empire building at the cost of sustainability. Any, and likely all, of these factors played into the massive disruptions that gripped law firms in 2009-2010. (see Towsand, Morgan, Darby et al.)

Firms are not quick to innovate in the best of times. Facing a 50% drop in work load, billings, and profits is not the best of time. All of this conspired to make it difficult to get a job in the IP field in 2009. Thankfully, the broader market is slowly improving.

As the line representing new filings continues on its upward march, we would do well to keep a close eye on the movements and metrics of our own "market" s well as the broader market.

Flat Design and the Decline of the GUI Design Patent

 With the advent of IOS7, Apple has joined Microsoft (Metro) and Google (Now) in putting to rest (for the time being) digital skeuomorphic designs. While a good thing for designers who like clean lines, it might complicate future GUI Design Patent Strategies.

A quick primer, digital skeuomorphic design elements are when the interface or the icon is designed such that it looks like the physical world object that it is designed to digitally replicate. For example, the bookshelf in Ibook, is digital skeuomorphic design. There is no reason that a digital container of book files needs to look like a bookshelf; other than to relate to you, the user, what is the purpose of the digital program. Additionally, buttons with dropped shadows, or clever isometric representations of objects within the icon space, are all examples of digital skeuomorphic design.

However, with the advent of flat design across the three major mobile development platforms, things like icons designed to look like bookcases is going to be a thing of the past. Flat design, like its "Modernism" architectural equivalent is premised of reducing the ostentation ornamentation. In the same way that neo-Gothic architecture like this gave way to boxy simplicity of like this, so too does flat design trend to simple geometric forms and a studied lack of ostentation and ornamentation.

Part of this change has been led by a difference in attitudes regarding the purpose of the GUI in the first place.  Digital skeuomorphic designs were originally used to help people with no inherent knowledge of the inner workings of computers to easily map real world actions to digital ones. A digital file was made to look like a physical office file. A digital delete function was made to look like a trash can, etc. Now, with at least two generations of American consumers raised on digital entertainment, there is less of a need to visually explain the functions of each icon. It is simply enough, in most instances, to state its function and designate an area for the user to interact with that function.

lots of rectangles, no shadows 

GUIs, flat or not, can be protected by design patents. In 1996, the USPTO created guidelines for the protection of GUIs based on its decision in Ex Parte Strijland.  GUI design or surface ornamentation is protectable as long as it is shown to be novel, not obvious, and not functional. The claimed design may be presented as a line drawing or a digital image. Color and grayscale are allowed to be presented in the same GUI application, but line drawings and digital images are not. Animated designs are also patentable in the United States, and must show a minimum of two views of the animation. 

This is all a long winded intro into the point. Of the recent victories that Apple has achieved against Samsung, Apple succeeded in proving that Samsung had copied a design patented GUI (seen at left). As you will note,  this Apple design is chock full of skeuomorphic elements. This includes not only the icons themselves, but their placement, the shape of the icons, their slightly beveled appearance etc.

However, by moving to a flat design paradigm, Apple and its competitors are moving into a field whose sole purpose is to simplify the display elements, not add ornamentation. As noted above, design patents mush have a non-functional use, and must be directly related to the ornamentation. If flat design takes hold, it will be increasingly difficult for designers to obtain protection for flat designs as they  essentially become functional identifiers for computer tasks. As a result, we are going to see a lot of convergent design elements that people will accuse other people of stealing, but no one will be able to obtain a patent on.

As a result, it is preferable to augment your GUI design patent strategy with a screen shot copyright strategy. This way, if it is an instance of blatant copying, you are still protected by an enforceable IP right.

Jordan Garner

Architectural Plans and IP

The house to the left, deigned by famed Architect Richard Neutra, and immortalized by photographer Julius Shulman is not for sale. 

However, in the future you could get your very own copy of that house or another house, directly from the work shop of Richard Neutra. 

A new partnership between, Dion Neutra (Richard's son),  and the Neutra Office and California Architecture Conservancy,  allows for individuals to license the right to build their very own Neutra-designed home. Dion Neutra and the Neutra Office will even supervise the construction. 

Of course, the price is "upon request" but is supposedly line with existing custom architectural plans. 

I was once told that if you have to ask the price of something, you can't afford it. That is likely the case here, and that's unfortunate. 

It is really unfortunate that existing plans, already created and merely stuffed into a portfolio somewhere, are being priced as though they were new works of commission. The benefit for Dion is that the plans represent the sunk IP development cost of Richard Neutra not Dion Neutra. Attempting to extract that cost now, on a per copy basis, is a great way to ensure that those with the money to afford it, will resort to hiring a living architect. It is a little like saying every time you wanted to hear a song from your favorite artist, you had to pay to go to a concert. 

One goal of IP to place the maximal level of control over a work in the hands of its creator. However, a competing goal is to maximize the value of the work. In this circumstance, it is clear (maybe not to them) that it is the desire of the Conservancy is to minimize the wide scale reproduction of Neutra design homes, at the expense of well...nothing.

Pricing the plans such the "brand" value of the Richard Neutra is maintained (i.e. expensive), does nothing to advance the state of modern architecture, nor does it maximize the inherent IP value of Richard Neutra's work. 

One of the problems in American Housing stock is that the places in which people who appreciate Neutra style homes (i.e. Modern, yuppie types) live, are the same places that have pretty well developed housing stock. It is generally not possible (economically, or otherwise) to move into, say Scarsdale, and build a Neutra home from scratch. You would likely need to tear down an existing house and build a Neutra home over the bones of that. Once you have spent a significant amount of money tearing down a perfectly good home, odds are, you are going to replace it with something highly customized to your needs. Odds are, a Neutra Home, is not highly customized to that affluent individual's particular needs. 

Instead of pricing it in a way that only a very few people will avail themselves of the opportunity, Conservancy should be pricing the plans to hit the urban / upscale suburb market. By making the plans available for a small fee, the range of potential builders increases dramatically. 

I am not advocating forcing IP owners to license their works at cut rate prices. However, it makes sense to sell the plans to modern, aspirational housing, to actual aspiring artistic people. These people generally do not pay for custom architectural plans, because they are expensive. Here, Neutra has no cost, so the profit margins, at any price, are wide.  


Jordan Garner - 

Design Convergence and Design Patents

The other night, I read my son his favorite Train Book. This book contains a global panoply of  Train designs ranging from the old school "Tank" engine of Thomas to the ultra-sleek trolley trains of modern Germany. *See left.

Unfortunately for my 2 year old son, the modern trains have a more than a passing resemblance to buses.  My son insisted that the vehicle to the left was a "bus" and not a "train."

I was crushed, I had failed in my helicopter parenting. I failed to teach my son about the sordid world of design convergence.  He looked at me with puzzled eyes as I explained that, as the life cycle of a product category grows, the lion's share of new development efforts are directed to squeezing  maximum utility from the product.

In this case, buses and trains, no mater their underlying mechanisms of action, are both means of conveying people form location A to location B as quickly as possible (assuming you're not talking about the Manhattan X-Town).  Because they are mature technologies directed toward the same goals, designers will achieve  convergent design. This is true even when taking into account the unique technological platforms.

 The bus to the left is slightly higher due to engine and drive train. The trolley is longer and has less ground clearance.  However, overall, the design of the bus and the train are pretty similar. The windows on the side, the larger driver windshield,  the double doors, all of them speak to an optimization of certain design element that we look for in public transit.

Now, what does this have to do with intellectual property?

When an inventor or designer is contemplating obtaining protection for a concept, it is essential to understand the underlying function. However, it is also important to look to optimal form for achieving that function.

 In our bus/train example, if a designer had a design for a new bus, a Design Patent that covered some of the elements relating to usability, would run afoul of "no functional elements" prohibition of design patents.

 However, if you simply drafted utility claims directed to big windshields and double doors  you are unlikely to get very far with the patent office. The solution then is to break your concept down into two parts, the function of the device, and how the user interacts with it. Double doors become passenger clearance enhancers, not simply design elements.

Most inventors are quick to seek protection on the function of the device. A far smaller number actually obtain protection on commercially viable product form factors. One company that has aggressively exploited this gap is Apple. Since the internal components of Iphones are generally known technology, Apple relies heavily on Design Patents to protect the unique look of its products. The function of a Samsung phone and an Apple phone are technically identical. However, the appearance are worlds apart.

In order for an inventor to cover both avenues, it is essential to have a working knowledge of how users will interact with the technology and what forces will drive convergence.  Inventors have done themselves a great disservice by not pushing some quantitative analysis of user interface designs, as they relate to their specific technology. Once they find the optimal design, they could file for a Design patent along with their utility applications.

By the time I finished explaining all this, my son had decided it was just easier to go to sleep, hopefully dreaming of converged automotive design.

By: Jordan Garner
Contact me at: jgarner@leasonellis.com

Getting Hired in the IP Field

 Regardless of how you find yourself less than gainfully employed (or about to be less than gainfully employed), it is helpful to know that all IP associates are not equal in terms of their supply / demand curves. 

It is generally assumed that all IP associates (and partners) tend to land on their feet after a major event like Dewey. This, I can say from personal experience, is not always the case. Depending on your technical background (you have a technical background, right?) the market tends to set the going rate of demand differently for different kinds of associates.

So, how does one increase their desirability in terms of greater chance of employment? Well, going to a really good law school is really helpful, but not an indication of success.  Going to a decent (not terrible) school and doing really well is probably not better than going to an excellent law school and not doing so hot, but it is a decent consolation prize. Obviously the preferred option would be to go to a good school and do really well (and date supermodels). So, taking a clutch of associates, all of whom did well in undergrad and went to an excellent law school, who gets hired first? Who is in demand?

Well, if you have been on any recruiter websites (or get the e-mails) you can quickly create a ranking based on demand. While the list moves around a bit depending on Litigation or Prosecution emphasis, the top spots of the list remain largely intact. So who is on top: 

Electrical Engineering

Computer Science

Mechanical engineering

Chemical Engineering 

Civil Engineering

Pharmaceutical / Biotech (PhD. level) 

Biology (Non- Phd.)

Trademark

The best way to get a job in the current IP landscape is to have an electrical engineering degree or a computer science degree.  The hardest way is to not have a technical degree at all. This doesn't mean that Trademark Associates do not get hired (we have hired a few recently), it just means that the supply greatly outstrips demand, and will for the foreseeable future.  

Jordan Garner, Leason Ellis, White Plains NY.

New Feature

In the course of assisting a client with a trademark matter, I began thinking about all the decisions that eventually brought this client to my attention. While the hows and whys of the pertinent legal matter should always take precedence, I began to ask the client about their general impression of intellectual property law. More importantly, I began asking about what it meant to them before it became a focus of a dispute.

I think many practitioners fail to understand that the general public is largely aware of intellectual property concepts, but don't always know the best way to take advantage of the rights that our system provides. Much like in health care, IP practice focuses a lot of its time on preventable issues, that were never prevented.

I decided to get some data on what intellectual property producers think about IP, especially before it becomes something that is knocking on the front door of their livelihood. Issues like why producers opt for cheap invention services, why people fail to get federal copyrights or file for trademarks. My assumptions led me to believe, again like health care, that is was an issue of money. The capital outlay for preventative legal actions was seen as a waste of money, while remedial legal actions were undertaken as a option of last resort. In my interviews, I found this to be generally correct, however, there is a vista of thoughts, emotions and pre-conceptions that go into producer decisions.

In the coming weeks, there will be a new feature which will relate some of my interviews with designers, programmers, inventors and other producers of intellectual property. Hopefully to convey their impressions of our field and how those impressions influence their work, their decisions to hire attorneys, and their decisions to take action against other producers. Through these interviews, IP practitioners can learn as much about the people we seek to help as they learn about our field.

These posts will be labeled [Producer Profiles].

[GA]