Sometimes Intellectual Property protection available to software developers appears to be inadequate. Legal professionals serving the software industry are forced to work within confines set by the “traditional” forms of Intellectual Property protection of Patents, Designs, Copyright and Trademark. The problem has become more acute since the Alice Corporation decision in the United States limited those instances in which patent protection is available.
However, software developers and legal professionals serving the software industry, such as myself, can learn new tricks by watching what industry leaders Apple Corporation (hereinafter Apple) and Samsung Corporation (hereinafter Samsung) are doing. Apple has filed 531 Design applications in Canada. Samsung has filed 227 Design application in Canada.
Under the Canadian Industrial Design Act, “design or industrial design means features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye. Similarly, the US Patent Act refers to, “any new, original, and ornamental design for an article of manufacture…”
Design protection traditionally has been used to protect the ornamental shape and appearance of chairs, lamps, telephones and various consumer objects. In the past few years, Apple, Samsung and others have expanded the use of Design protection to protect not only the physical shape of their products but also their software development and implementation. Among the Design applications filed by Apple and Samsung one can find applications with titles like:
“Display Screen with Font”
“Display Screen with Icon”
“Display Screen with Graphical User Interface and Electronic Icon”
“Display Screen with Graphical User Interface”.
The reader will note that Apple and Samsung are using Design law to protect Graphical User Interfaces, fonts and icons. Each Design reflects what a viewer would see on their screen.