When considering how to obtain patent protection for a new product, the innovations that seem simple should not be overlooked. Too often, companies focus only on obtaining patent protection for the technologically complex aspects of a new product, and miss out on obtaining valuable patent protection for innovations that relate to what are sometimes perceived to be more basic and straight-forward features.
Innovations relating to a product's packaging, user interface and aesthetic appearance can sometimes seem overly simple and therefore of less importance than innovations relating to the complex technology that goes into the product. However, it is often these seemingly simple innovations that provide substantial commercial value. Regardless of how simple or basic an innovation may seem, if it contributes to making a product or service more desirable and appealing to a customer, then it probably makes sense to obtain some sort of proprietary rights to that innovation. In many cases, patents that protect these seemingly simple innovations are just as valuable to their owners as patents that cover more technologically complex innovations.
Patenting packaging. Apple's iPods are everywhere, and while it may not be surprising to learn that Apple's iPods contain a lot of patented technology, it might be surprising to learn that even the iPod packaging is covered by patent protection. Apple Inc. was recently granted U.S. Patent No. 7,878,326 for the distinctive case that packages their iPods (see Figure 1). This U.S. patent provides proprietary rights to a packaging case that holds an item (the iPod) using a holder that sits on a ledge within the case.
Obtaining patent protection for packaging is not new. Companies that sell consumer products, such as toiletries, toys and consumer electronics, have long realized the advantage of obtaining patent protection for their unique packaging. U.S. Patent No. 6,311,837, belonging to Procter & Gamble, is another good example of a packaging patent. This patent covers packaging for a product (such as a battery-operated toothbrush) that has a switch that is capable of acquiring a momentarily-on position and a continuously-on position, wherein the packaging prevents the switch from being moved into the continuously-on position. This enables a user to test the toothbrush while it is hanging on the rack, without allowing the user to put the toothbrush in the continuously-on setting, which would drain the battery.
As many marketing departments will testify, a product's packaging can contribute significantly to the overall commercial success of the product. Packaging is often the first thing a consumer sees when he or she is evaluating a new product and is critical in establishing the consumer's first impression of the product. In many cases, it is the packaging that makes a product more appealing and/or desirable to a consumer than a similar competing product.
When significant effort goes into designing and developing packaging for a product, it makes sense to consider whether some proprietary rights to the packaging should be obtained.
Why the Google doodle is patented. Graphical user interfaces ("GUIs") facilitate everyday life. Every time we use an internet search engine, play with a smart phone or withdraw money from a bank machine, we are interacting with a graphical user interface. On the surface, these interfaces can seem quite basic and simple. However, in reality, significant innovation goes into their design and implementation in order to provide a user with an easy-to-use façade that hides the complex processing functionality that goes on behind the scenes. When a user interface seems straight-forward and easy to use, chances are it didn't get that way by accident. Developing a new user interface, whether it is for selling products online or enabling a user to perform self-checkout at the grocery store, takes a lot of thought and in most cases, innovation.
A graphical user interface can be considered to contain innovation (and thus patentable subject matter) when it provides:
- a new functionality that had not previously been available. Think how easy Apple's iPod MP3 players are to use. Apple Inc. was recently granted U.S. Patent No. 7,560,637 covering a method of assisting user interaction with a multimedia player that involves displaying a hierarchical screen display and receiving user selections through rotational user action of a user input device.
- a feature that makes it faster, easier or more appealing to use than a competing interface. For example, if an interface allows a user to perform an action, such as making an online purchase, with fewer steps than is required by a competing interface, then this interface could contain innovation that warrants patent protection.
- a new feature that distinguishes the interface from other interfaces, and makes the interface more appealing to a user. Take, for example, the Google doodle. The Google doodle appears on the home page of the Google search engine, and provides a modified Google logo that includes, or is in the form of, a pictogram that represents a certain event or person (see Figure 4, which is a Google doodle representing Thanksgiving). By scrolling a mouse over the logo, a text box appears identifying the event or person, and by clicking on the Google doodle, search results relating to the given event are displayed. To protect this functionality, Google obtained U.S. Patent No. 7,912,915, which covers a method of providing a modified company logo that has one or more animated images on a web page and associating a link or search results to the modified logo such that when a user selects the modified logo, the link or search results are provided to the user.
Once a new graphical user interface, or a new feature of a graphical user interface, is launched into the public marketplace, its functionality is readily apparent just by interacting with the interface. This makes graphical user interfaces excellent candidates for being copied by competitors; particularly when the innovation makes the user interface more attractive to users and/or customers. One of the most common reasons for obtaining patent protection is to prevent competitors from copying a new invention, and for many companies this is a good reason for obtaining patent protection for their new GUI innovations.
Patents for the "look" of your snack food. The potato chip and candy aisle at the grocery store is full of patented technology. Companies such as Frito-Lay and Nabisco have significant patent portfolios that cover all aspects of their snack foods, ranging from the methods of making the snack foods to novel ways of displaying the snack foods in the grocery aisle. However, it is not always the technology behind these products that makes them innovative. Sometimes it is simply the way the product looks that makes it innovative, and obtaining patent protection towards a new look or appearance can be quite valuable.
The look of a new product can be protected via a design patent in the United States and an industrial design registration in Canada. Design patents and industrial design registrations do not protect the functional or technological aspects of a product, but instead provide protection strictly for the product's aesthetic "look" or "appearance."
When a new chip comes onto the market, it is often the chip's distinct new look that makes it either desirable to a consumer or distinguishable from other products. As a result, many snack food companies obtain design patents that cover the new look of their snack foods, so as to avoid competitors from launching similar products. Shown below are figures from U.S. Design Patent Nos. D636,971 and D625,486 belonging to Frito-Lay North America, Inc. These design patents provide protection for the shapes and appearances of the snack foods shown.
Design patents and industrial designs can cover the look of any new product, provided that the look is new. When a new product does not necessarily contain any new technology, but does display a distinct new look that makes it unique from other products and desirable to a consumer, a design patent can provide valuable protection for this new aspect of the product. Design patent protection can also be obtained in combination with regular patent protection (i.e., that which covers functional or utility aspects). For many new products, including the packaging and the user interfaces described above, both regular patent protection and design patent protection can be obtained to protect both the functional/technological and aesthetic aspects of the new product.
It is often the seemingly simple improvements or ideas that go into a new product that are critical to the product's commercial success. What makes a product desirable from a consumer perspective may not always be its complex technology and functionality, but instead may be as simple as the way the product looks or the ease with which it can be used. Therefore, when considering if and how to protect a new product, the simple innovations that may seem trivial on the surface should not be overlooked. If the packaging of a product, its aesthetic appearance, or the way it allows a user to interact with it provides a competitive advantage, it may form an excellent basis for obtaining valuable patent protection.
Emma Start, Montreal
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.