You may have read in the past that Apple had a patent granted for their ‘slide-to-unlock’ concept and that they were suing rivals for infringement of that granted patent. You may also have read, or been advised, that it is not possible to patent software and that you can’t patent a computer program (or perhaps that you shouldn’t). Making logical, rational decisions in the face of such conflicting messages is a significant hurdle for any business. Anecdotally, we are aware of a project in which all developers were instructed to remove any ‘pinch-to-zoom’ functionality by the board of a company based on a news article that Apple had filed for a patent which included mention of the concept. In the end the internal edict wasn’t enacted before it was successfully challenged but it is clear that there is room for error when it comes to GUIs and patents.
The law in this area has evolved significantly over the years and is constantly evolving. Antiquated regulations preventing patents from being granted directed to computer programs/code and the presentation of information did not contemplate the existence of graphical user interfaces, let alone an interface which itself provides a technical benefit or one which improves the functionality of the machine. It is difficult for lawmakers to determine whether an interface provides a technical contribution and thus should be entitled to patent protection or whether the interface is merely aesthetically pleasing, is merely a design choice or is fundamentally innovative. In short, the way an element is generated on a screen or the way an interface may function to enable users to interact with a machine may be protectable, provided the features provide a technical benefit and are substantially more than the visual arrangement of elements. In the case of ‘slide-to-unlock’ it was decided that there was a real world effect in the way the device itself operated to improve security and accessibility. Confused? We don’t blame you.
So how does an effective business deal with this confusion?
It is important to consider whether or not trying to protect a GUI with a patent will add value the project. Will other IP rights (e.g. copyright) provide enough protection for the interface? What are the chances of a patent being granted? Most patent attorneys wouldn’t give ‘slide-to-unlock’ much of a chance of being granted (in the end in the UK it was considered invalid for being an obvious solution) but is the cost of the application worth the potential benefit? For large companies a speculative application may be useful as doubt placed in the mind of competitors is valuable, as is the marketing value in being shown to be innovative.
On the other hand, you shouldn’t dismiss an aspect of a GUI simply because it is part of a GUI. Don’t settle for advice which is restricted to whether or not an idea is patentable. The chances are the answer will often be “maybe, but we could give it a go” — make sure there are multiple factors being considered.
It is also important to make sure you don’t believe everything you read — a patent publication does not mean an idea is patentable — a granted patent is limited only by the scope of the claims and not by a drawing of an interface or a mention in its description — are you actually trying to implement that particular feature or are you really trying to do something else? In any circumstance, the issue is usually more nuanced than it seems.
Don’t believe everything you read and don’t withdraw a feature unless absolutely necessary!
For more information on patenting computer-implemented inventions visit our dedicated Computer Technology team’s page here. If you would like to discuss any of the issues raised in this article please contact Matthew Hoyles via firstname.lastname@example.org.