IP advice: Protecting ‘look and feel’

Many companies have invested huge amounts of time and money in developing graphical user interfaces (GUIs). The same GUI is typically provided across all devices produced by a particular manufacturer, so the consumer becomes familiar with the particular 'look and feel' of a family of products. For example, Apple's iPad, iPhone and iPod products feature the same GUI. This investment in the GUI should be protected by intellectual property (IP) rights to ensure the 'look and feel' remains distinctive and associated exclusively with the company's products, preventing third party copying. The appearance of a GUI can be protected across the EU using Registered Community Designs (RCDs). The RCD provides useful protection as it extends to the GUI applied to any device. Therefore, in terms of protection, it does not matter whether the GUI is applied to a competitor's smartphone, tablet or set top box – if the design is applied to any product, action can be taken. RCDs are particularly useful where the layout of icons on a screen is aesthetic. They can also be useful when a company wishes to protect the look and feel of the GUI: for example, colour choices, shading and font choices can all be protected. Although aesthetics are important, many GUIs may also improve the operation of the device. For example, a GUI that improves the precision of icon selection by the user may be capable of patent protection. These utilitarian features are particularly valuable to companies and, where these features are independent of aesthetics, it will be worth acknowledging the investment made in advancing the technology by also investing in patent protection. Obtaining patent protection for a GUI in Europe is sometimes challenging. This is because case law has evolved at the European Patent Office (EPO, which examines patent applications) to a position where it has been decided that any aspects of an invention which relate to solely to the presentation of information cannot be used to confer inventive character in the invention. As such, these inventions will not be capable of patent protection. Of course, many aspects of a GUI relate solely to the content of the information being presented. Whilst these would not be capable of patent protection in Europe, in some instances the structure of the GUI assists the user in selecting content via icons. Patent protection for this type of GUI may have just become easier following a recent case decided by the Board of Appeal at the EPO. This case law is used as precedent when examining other similar cases. Case T0781/10 related to a device that had menu icons displayed on a background image. The icon was selectable by moving the focus using a direction button. Specifically, the difference between the invention and a known GUI resided in 'the background screen management unit [being] configured to change a view point of the background screen when the focus is moved, in accordance with a direction in which the focus is moved'. It was held by the Board that the GUI issue that this difference addressed was to 'increase the user's awareness of the currently selected menu hierarchy and thereby achieve a more effective man-machine interface'. Moreover, this difference enhanced the precision of the input device. It should be noted that, in this case, the claimed invention related to how the icon was displayed or changed rather than the form of the icon. As this invention provided a technical contribution over existing GUIs, and because the invention was more than a mere presentation of information, the claimed invention was deemed to have the required inventive character. Patent protection was therefore granted. This case shows the importance in selecting the correct IP protection. Where the uniqueness of the GUI resides in its aesthetics, then RCDs are the most appropriate form of protection. However, where the uniqueness resides in the utilitarian function of the GUI, patent protection is most appropriate. Further detailed information is available at www.dyoung.com. Alternatively, email the author at jaj@dyoung.com.