Throughout this book, we’ve discussed countless innovations in user interface software and technology. Our focus has been on the ideas themselves, refining our understanding of how these ideas work, and what opportunities they afford for interaction design. We’ve also talked about the many quality dimensions of these ideas: their  utility  for certain tasks, their  expressiveness  at supporting a range of tasks, their support for  privacy  and  security , and the  user efficiency  they afford. These are all of central concern to the  users  of these technologies, and so they are necessarily of concern to designers.

There are stakeholders other than users, however. There are the inventors of technologies. There the organizations that subsidize the invention of technologies, such as for-profit companies, or non-profit entities like universities. There is also the general public, for whom the technologies are ultimately invented, and the government, which seeks to make these innovations available to the public. Because these different stakeholder groups want different things—the public wants innovation cheaply available, whereas inventors want credit and potentially compensation for their inventions— ownership  of interface technology ideas is of central concern.

This concern of ownership raises broad questions about interface ideas:

• What are interface ideas?
• Should ideas be owned?
• Can ideas be owned?
• Can  interface  ideas be owned?
• What is the effect of ownership on innovation?

In this chapter, we’ll discuss these questions, and review some of the more notable precedent in copyright and patent law in the United States.

What are interface ideas?

In general, there really is no clear idea about what an  interface idea   is . There are many representations of ideas, however, that might be proxies for these ideas. For example, people write written descriptions of ideas in specifications, in research papers, and in marketing materials, all of which convey what makes an interface idea unique.

A designer’s sketch of an interface is another coarse representation of an idea. Of course, there’s also the interface implementation itself, which likely captures the essence of an idea, even if it doesn’t describe it explicitly. Each of these can indicate the essence of an idea, and may often explicitly distinguish one idea from others.

In academic research, ideas aren’t treated as discrete things. New ideas are combinations of old ideas, and the extent to which an idea is novel depends on how many ways it differs from prior inventions, and by how much. This is a multidimensional, subjective assessment often woven into peer review. “New” ideas are often attributed to specific researchers, but since research papers heavily cite the prior ideas upon which they were based, ideas are actually a composition of a complex interconnected web of prior ideas.

In industry, ideas are treated similarly when purely internal. Innovations emerge organically from interactions within a company, but also between a company and people outside of it, ultimately resulting in prototypes and employee knowledge of ideas. The biggest difference is that instead of publishing and sharing those ideas publicly, most companies share interface ideas through products, which only implicitly articulate ideas through experiences. Other companies might copy or refine those ideas, but it’s up to them to reverse engineer the essential elements of an idea in order to faithfully recreate it.

Should interface ideas be owned?

As I argued above, interface ideas are compositions of other ideas, and these compositions typically emerge from collaborative design processes. If this is true, how do we reconcile the need to reuse ideas to create new ones with the notion of ownership, which is about  preventing  reuse? To resolve this conflict, its necessary to reflect on why anyone would want to  own  an idea at all.

The first and most obvious reason to allow ownership is that ideas are hard to develop. They take time, effort, and money. If the result of all of that effort is that someone can just take your idea and get credit and profit from it, what incentive do you have to exert the effort? For example, why would a company want to task its employees with inventing new interface technologies if the company itself would not have the exclusive right to profit from its ideas? What incentive would an  individual  inventor have if they couldn’t personally profit from their idea?

The assumption in these questions, of course, is that inventors are  only  motivated by compensation. Some inventors are motivated by curiosity. For example, academic inventors, subsidized by their teaching efforts, follow their curiosity, invent things that may be of public value, and then often share them for free with the world. This can occur because their time is otherwise subsidized and they may not care about accruing wealth as much as they do having time to follow their curiosity. Other inventors might be motivated by the public good. For example, Elon Musk shared his idea for the  hyperloop  without expectation of credit or compensation because he wanted the world to investigate it, but he didn’t want to investigate it with his own resources. Therefore, while some inventors will be motivated by compensation, much innovation will happen even in the absence of the incentives that come with ownership.

Of course, these are pragmatic arguments for ownership that frame it as a legal instrument for preserving an incentive for innovation for the public good. One could also argue that people deserve an  inherent  right to ownership of ideas. After all, crafting and polishing an idea can be incredibly difficult, and the emotional effort behind it might demand ownership.

Whatever your argument for ownership, one cannot construct a notion of idea ownership without clarity about what an idea  is . As we discussed above, that is not clear, so ownership is not clear either.

Can ideas be owned?

Thus far, we have discussed interface ideas and ownership in the abstract. How do ideas and ownership actually work in the world? Here we’ll discuss U.S. law, as that is the country I’m most familiar with, and many countries model their laws on U.S. law.

U.S. law currently recognizes two forms of ownership relevant to interface technology.  Copyright  law ^aa Copyrights are often confused with trademarks. The key difference is that copyrights protect the work itself, whereas trademarks are a narrower category of marks or symbols that are used to distinguish between the goods or services of different organizations. Trademarks, at least in the U.S., are also not granted automatically. We do not discuss them here since they are purely about branding and not interface design. , for example,  automatically  recognizes any  concrete expression  of an idea as intellectual property, giving rights to the person or people who expressed the material. Source code used to implement an interface idea is therefore copyrighted automatically, as are all other forms of ideas, such as documents describing the idea. None of this protects the idea itself, unless you believe that the implementation of an idea  is  the idea. A copyright holder of any of these materials reserves the exclusive right to use that material. No one else, without the permission of the copyright holder, may use that material.

In addition to copyrights, U.S. law also explicitly grants limited ownership of ideas themselves in the form of  patents . In contrast to copyright, which protects specific expressions of ideas, patents copyright the ideas themselves. Because this conveys a much broader scope of protections and control, getting a patent requires writing a description of what constitutes the essence of the idea; this description must come in the form of “claims” about how the idea works, and those claims must differ “substantially” from the claims of prior patents. Once granted, a patent holder can control who can and cannot “use” the idea in products, services, and other copyrighted material. This protection currently lasts for 20 years, after which the idea enters the  public domain , and can be used by anyone.

In addition to demonstrating novelty beyond prior patents, what categories of ideas can be patented is constantly in flux because of ambiguous language in patent law. At the time of this writing, for example, algorithms are still technically patentable, but there is a clear trend in the decisions of the U.S. Supreme Court of eroding protections for algorithms. This ambiguity emerges from the inherent ambiguity of what constitutes an idea.

There are also many rules about  when  something can be patented: if it has been in the public domain for more than a year in the U.S., it is considered public domain, and cannot be patented. Inventors in the U.S. are often encouraged to write provisional patents, which give a partial specification of an idea, giving the inventors a year to write the full patent, while also declaring to the world that they were the first to own the idea. If the provisional patent expires without a full patent application being submitted, then the idea enters the public domain. Otherwise, the application process proceeds (often for years), while the patent examiner’s office assesses the novelty relative to prior patents and other inventions.

Because copyrights and patents prevent use of ideas without the owner’s permission, U.S. law also has the notion of  licenses , which allow owners to grant permission to others to use copyrighted or patented materials. For example, you don’t own the bits that represent the web browser that you’re reading this in: Microsoft, Google, Mozilla, or Apple still own that sequence of bits. They’ve just granted you a limited license to use those bits and they can take that right away at any time and for any reason.

Because most interface innovations occur in the context of organizations, it’s also important to understand how  employment contracts  interact with copyright and patent ownership. For example, as a condition of most for-profit employment, employees promise to  transfer  ownership of their copyrighted and patented materials to the organization they work for. That means any ideas you conceive of in a for-profit job are not your intellectual property, but the property of the company you work for. This can make it hard to protect ideas you believe are separate from your responsibilities at work. If you thought of something while at home reading work email, was it your idea or the company’s idea? Employment contracts vary. Most for-profit enterprises claim  all  intellectual property as theirs. Most universities allow academics to keep their property, but require the owners to transfer their “ right to license ” their intellectual property. Losing a right to license means that while inventors at universities still technically own the property, the university has all of the control in who uses the property, including the original inventor themselves. Because of the complexity of these decisions, most universities and large companies have resources to help with legal questions about intellectual property.

Can  interface  ideas be owned?

Our discussion thus far has been largely agnostic of  interface  ideas. Because copyright and patent law varies in its applicability for different media, where does U.S. law currently stand on ownership of  interface  ideas?

The first major legal precedent on interfaces ideas was set by  Apple Computer, Inc. v. Microsoft Corp , filed in 1988, a few years after the release of Apple’s Mac OS. Apple had agreed to license parts of its GUI to Microsoft for Windows 1.0, but when Microsoft released Windows 2.0 with many of the interface features found in Mac OS, Apple decided to file a copyright infringement suit against Microsoft and Hewlett-Packard to prevent them from using the interface ideas. Their dispute was that ideas like buttons, scroll bars, text boxes, the rectangular look of windows, their resizability, their title bars, and their ability to overlap, were copyrighted material, and therefore Apple had the exclusive right to decide who could use those ideas. Apple also claimed that the entire “look and feel” taken as a whole was copyrighted material.

At the time, legal analysis of this case found the arguments weak. For example, in a prominent series of editorials, Pamela Samuelson pointed out that there really was no legal definition of “look and feel”, and so trying to claim that it was protected by copyright law would require defining it ^{3 3}

P. Samuelson (1989). Why the look and feel of software user interfaces should not be protected by copyright law. Communications of the ACM.

• If look and feel is copyrighted, Apple’s claims to look and feel were not original, since Xerox PARC invented them (and they based them on other ideas from academia).
• Legal precedent suggested that layouts of content in graphic design were not copyrightable.
• Interfaces have functionality, and so patent law must be invoked, since U.S. law requires that if something is patentable, it is ineligible for copyright protection.
• There is a long history of protecting the products of human factors engineering ideas by patent law, but no history of protecting it through copyright.

In a CHI 1990 paper, Samuelson and a colleague reported the results of a 1989 survey of user interface designers about their opinions about the case and found several consistent beliefs ^{4 4}

Pamela Samuelson and Robert F. J. Glushko (1990). What the user interface field thinks of the software copyright "look and feel" lawsuits (and what the law ought to do about it). SIGCHI Bulletin.

• Designers strongly believed that the look and feel of user interfaces should not be given protection by copyright  or  patent law.
• Many believed the phrase “look and feel” was too vague to become part of legal precedent.
• Many expressed concern that there was not yet a way to actually judge whether “look and feel” was comparable between two interfaces.
• Many pointed out that the actual functionality of software is part of the look and feel of an interface, and that they did not believe this functionality should be protected or owned.

These findings were particularly damning for the merits of copyright and patent law for interface designs, as these interface designers are the very people whom the copyright and patent laws were designed to protect.

The court followed a similar line of reasoning as Samuelson and the HCI community. The court insisted on an analysis of the GUI elements, with Apple listing 189 ideas for review. The court decided that 179 of those ideas had already been licensed to Microsoft in the Windows 1.0 agreement and that the other 10 were not copyrightable, either because Xerox PARC had invented them, or they were the only way of expressing an idea. The court defined a standard of “virtual identity” between Windows and the Macintosh in order to prove infringement, and Apple could not demonstrate it.

In her review of the rulings, Samuelson argued that while there may be something valuable about look and feel, copyright law was not the right way to protect it, particularly because the artistic and functional aspects could not be separated ^{5,6 5}

Pamela Samuelson (1992). Updating the copyright look and feel lawsuits. Communications of the ACM.

Interestingly, after this suit, Apple and Microsoft resolved their conflict outside of court. Apple agreed to make Internet Explorer their default browser; Microsoft agreed to continue developing Office for Mac. Microsoft bought $150 million of non-voting Apple stock. They even decided to agree to a patent cross-licensing agreement in which certain innovations would be shared between the two companies. Both mutually agreed that rather than spending hundreds of millions of dollars on lawyers, they would spend hundreds of millions of dollars on partnership.

What is the effect of interface idea ownership on innovation?

While there have been many interface lawsuits since, few have had the scope and scale of Apple v Microsoft case. That was until 2016, when Apple sued Samsung for infringing upon three design patents that covered the black rounded-rectangle face of the iPhone and the grid of icons found in the iOS home screen. This time, using patent law, Apple succeeded in court, and a judge ordered Samsung to pay $399 million in lost profits due to infringement. These damages, however, and their scale, led to entirely different problem: what effect would Samsung paying these damages have on the industry and its ability to innovate?

Several companies, including Facebook, eBay, and Google, warned that actually forcing Samsung to pay these damages would lead to a flood of litigation between technology companies, since the companies had so liberally borrowed from each other in their designs. Their core argument was that complex, “multi-component” devices like smartphones and tablets simply cannot be litigated through the narrow and granular lens of patents. Samuelson, again providing commentary on this landmark case on patent law, summarized the legal arguments, and raised concerns about the cost of an industry-wide endless patent war, draining companies of innovation, and exhausting courts ^{1,2 1}

Pamela Samuelson (2016). Apple v. Samsung and the upcoming design patent wars?. Communications of the ACM.

This history of lawsuits and settlements might make one wonder how technology companies are able to so freely copy key features in other company’s products. For example, the original Macintosh user interface was directly inspired by work at Xerox PARC, and Windows was directly inspired by Mac OS. And hundreds of interface ideas on smartphones are regularly copied between Android, iOS, and other competiting platforms. These companies all have patents on a range of these ideas. And so the only thing stopping them from copying is a threat of lawsuit. But how likely is that threat when they might just countersue, leading to billions of dollars in legal fees and settlements? In essence, patent wars have cost large technology companies a lot of money and provided little benefit to them. And the smallest companies trying to defend their IP with patents and copyrights simply don’t have the resources to defend their IP in court.

Do these epic battles between tech giants around copyrights and patents on interface ideas actually incentivize innovation? Do they make you want to innovate? Do they make you want to help a company innovate? Ultimately, since copyright and patent law are ultimately designed to help inventors recover their investments and motivate them to reinvest them, the answers to these questions should probably shape the future of intellectual property law.

What does all of this intellectual property law mean for you? That depends on how much you care about compensation and credit for your ideas. If you don’t care at all about ownership, your approach to design can be quite pure, generating ideas, describing them, sharing liberally, furthering your vision of user interfaces independent of market concerns. But few of us have this luxury. Academics, who often have an obligation to disclose their inventions to universities so that universities can monetize them, and who may collaborate with students or people in industry who  do  care about credit and ownership, must often engage with intellectual property law to navigate how to care. And people in industry, whether they care about ownership or not, are contractually obligated to care about ownership by their employers. The only people free to share without concern for ownership are independent innovators with no organizational requirements to protect IP. This includes students in universities, who do not usually sign employment agreements that require them to give up licensing rights, but when students interact with faculty around ideas, this can still arise.

Since you probably have to care to some extent, here are the key things to know:

• When you begin a collaboration , be sure to have an explicit conversation about intellectual property. What kind of credit or compensation do you want? What kinds of intellectual property obligations are you each subject to? If your goals and constraints around ownership are in tension, find a way to resolve them before proceeding with the collaboration. This includes deciding how much each of you owns about an idea, which is a decision necessary for patenting an idea. (This can be disruptive to collaboration, and so many organizations create standard agreements to resolve these tensions. At the University of Washington, reach out to  CoMotion , which has several experts on IP law and UW IP policy).
• Before you share an idea publicly , decide what you want to achieve through that sharing. Releasing an idea publicly will start a 1-year clock on patentability. Releasing copyrighted material to the public won’t give up your rights, but it will allow people to reuse it, and it’s up to you to file a copyright lawsuit if you want to stop someone from using it. If you’re sharing an idea that you conceived of while working at a company, recognize that you’re disclosing your  company’s  IP, and not yours, and that such disclosure could have implications for your current and future employment.
• After you share an idea , recognize that the only thing stopping someone from using it is a lawsuit or a threat of a lawsuit. Those are expensive and not always worth the time. The organization you work for might subsidize this enforcement, but they will likely do that in a way aligned with its interests, not yours.
• If you want to monetize a copyright or patent , recognize that companies don’t always see value in licensing IP. It may be cheaper for them to copy your IP and risk a lawsuit, or simply learn about your idea and invent their own slightly different idea that doesn’t infringe upon your rights, or your organization’s rights. In fact, in some cases, copyrights and patents can interfere with realizing your ideas. For example, because copyrights and patents are weak protection, and protecting them come with costs, venture capitalists who invest in ideas are much more interested in trade secrets, since they are not public.

If you think all of this IP law is a huge hassle and counterproductive to innovation, explore ways you might advocate for change in IP law. You can sign petitions, support new laws, and advocate for lobbying positions as part of the organization for which you work. If you take the opposite stance, find ways to strengthen intellectual property law in a way you protects you and others. My personal stance is IP law is ultimately an impediment to innovation. It starts from the premise that people can “own” ideas, which I think is a false premise. Ideas are always a combination of other ideas, so I feel that drawing ownership boundaries around them is false and counterproductive. Regardless of what you or I think, these laws do affect your work on user interface software technologies and so you should closely monitor changes in intellectual property law and legal precedent.