Before the Apple v. Samsung case, few people outside the design industry cared about design patents. But with Apple's resounding victory (and $1.05 billion spoils), the issue of whether something like rounded corners can be patented has been roiling the blogs. Cooper Woodring, an industrial designer and the former Industrial Designers Society of America president, was a consultant on the Apple case and has trained nine IDSA members as courtroom experts—including Peter Bressler, Apple's testifying witness. We asked Woodring to guide us through the hazy area of litigation.
FC: The most common kind of patent is a utility patent, which covers a product's function. They've long been the subject of litigation. Why haven't design patents?
Woodring: Twenty years ago, design patents were considered unenforceable because applicants, at the behest of lawyers, were too specific in their sketches—they depicted all the gory details of an entire product. Copycats would then argue, "Our design is different. We changed the screws." Now companies only patent the parts of a product that represent its "heart and soul," like Apple's "flat, transparent, edge-to-edge front and rounded corners." That's new, and enforceable.
Since design patents only cover form, it seems the outcome of a design-related trial hinges on who gets to decide if one product looks too much like a competitor's. How do courts standardize that process?
The precedent has been that the test of a design patent is in "the eye of an ordinary observer." That's why I've seen defense attorneys try to throw out jurors with art-school backgrounds. The law dates back to 1871, when the Supreme Court ruled in the Gorham case [in which a silverware manufacturer sued a rival for copying its elegant, simple spoon-and-fork-handle design—a major departure from ornate Victorian embellishment]. The court determined then that it wasn't professional buyers who should decide an infringement case but rather common consumers. If rulings were based on the opinions of experts, who would never be deceived, design patents would be worthless.
I've heard that some attorneys in patent cases employ the "Woodring strategy." Describe that for us.
It's used when a company releases a product that looks similar to the patented design of another company's product. It involves designing a third version that doesn't look anything like the other two, proving there's more than one design that could fulfill a product's function. And if you come up with an oddball design, it makes the other two look like kissing cousins by comparison. I did that for an electric tie-rack designer named Barbara Arner, whose idea had been knocked off by the Sharper Image: I used the guts of the copycat—because it actually had to work—and put together my version in three weeks for about $30,000. In an exit interview, one juror said, "If that old guy could design this thing that fast and simply, the Sharper Image certainly could." We won.
Many people think the Apple decision will stifle innovation. Is that a risk?
I think it's the opposite. I remember how shocked I was when I first saw the iPhone. It was that different. Now Samsung and others will have to create something really new. That's a good thing for design.