Kirk Klasson

The Perils of Being Cool ……

Aesthetics, Intellectual Property and pyrrhic legal victories

Awhile back there were a couple of posts here about the intersection of design and technological innovation (The more I buy gadgets, the better I like furniture and The Ghost in the Machine …October and November 2011) which raised the question as to whether or not design and in particular affordances or usage metaphors did, in fact, constitute and provide for reliable protection as intellectual property.

Well, we seem to be getting some answers and not a moment too soon as Apple and Samsung head for the UFC of IP showdowns in a jury trial beginning in the next couple of weeks. But the answers we seem to be getting are by no means definitive, differ widely by venue and are just about as quirky as it gets.

Take this for example:

In London, the British High Court recently ruled Samsung tablets did not infringe on Apple’s designs because they were “not as cool.” This was a win for Samsung and the second time that a European court has ruled against an infringement claim for Apple’s tablet design while at the same time a German court contemplates a EU wide embargo of Samsung’s tablet.

So how does something as vague as “cool” become the basis of a legal ruling?

Wikipedia defines “cool” as “an admired aesthetic of attitude, behavior, comportment, appearance and style, influenced by and a product of the Zeitgeist.”

Now there are too important clues here that bear further examination. The first is “aesthetic” as it lies at the very heart of protectable designs and constitutes a key test as to whether or not a design has been infringed. Patents are often categorized as protecting either a utility or design. The utility patent is the one that we are most familiar with as it covers the invention of a product, process, method, apparatus, etc. Design patents on the other hand are often based on the visual presence of a particular item. Both design and utility patents have to meet tests of prior art and originality. However, a design patent must also exhibit an aesthetic quality that would make it obviously distinguishable from other objects with similar visual properties. The aesthetics involved here would be nothing other than a refined appreciation of the object in question. So we have now marched ourselves onto a foggy British moor with the prospect of having to determine what constitutes, and who’s to judge, what a refined appreciation of the object in question is.

So, now that we’re in it, we might as well get all the way in and examine the next key term that would be “Zeitgeist” or the spirit of the times. How does one go about objectively adjudicating the weight contemporary sensibilities have on the appreciation of a fashionable instantiation of a utilitarian object? Sort of like observing quantum particles, your very presence skews measures to the point of rendering them useless. The notion that a universally shared aesthetic of behavior, comportment and appearance even exits for tablet devices strains credulity, unless of course you’re already camped outside your local Apple store awaiting the release of iPhone 5.

Yet, in the face of all this vaguery, the court reached its decision.

Design infringement is deemed to exist if an ordinary consumer when presented with two similar products would be unable to distinguish one from the other and therefore, mistaking the knock-off for the original, chose to purchase the knock-off instead. Only a refined appreciation of the objects in question would enable the consumer to make such a distinction. The court reasoned that any ordinary bumpkin could examine the products in question and reliably not confuse one for the other based on its appeal to the fashion sensibilities and technology savvy of today’s consumers. In short, Samsung won its case against Apple because its tablet was deemed to be not that cool.

In handing down its ruling, and perhaps in an effort to stem future litigation, the court also stipulated that the judgment be posted on Apple’s UK web site. Curious, because they stated that it be on Apple’s and not Samsung’s web site.

Now that’s cool.

Graphic courtesy of SuZQ Art and Images

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