Imitation And Flattery In Web Design May Get Tricky With Patents

from the patents-are-fun dept

There was a bit of a dustup between folks at Yahoo and Google earlier this week when Yahoo's Jeremy Zawodny noted that someone at Google had copied a Yahoo promotional website almost exactly, even using an image that showed the Yahoo toolbar, but which the Google employee tried to blur out. Google's Matt Cutts responded, in kind, noting that while it did appear to be a blatant and unfortunate copy, Yahoo might not have much ground to stand on considering how the company had blatantly copied some Google innovations in how they presented ads. While both sides seem to want to let the issue lie, some might point out that Google had to pay Yahoo hundreds of millions to settle a patent lawsuit claiming they copied the idea for search ads from Overture (which Yahoo bought) in the first place.

By itself, the debate was simply amusing -- and reminded me of an argument online from many years ago when there was a huge debate over copying someone else's HTML files. Specifically, I remember huge debates over whether or not it was okay for people to swipe some of the creative HTML designs that Derek Powazek did on his site, Fray.com a decade ago. Powazek was one of the first to figure out how to use the very limited HTML of the day to design artistic websites -- but some other sites simply took his HTML source and used it on their own pages. Some felt this was stealing, others felt it was flattery. Personally, I thought it was educational. I used some of Powazek's amazing HTML to teach myself how to do much more with HTML than you could learn in any book.

However, with the small skirmish between Cutts and Zawodny barely a day old, there's a separate story that points out how tricky this debate could become soon, if lawyers get involved. Google Blogoscoped, a blog following all things Google, points out that Google has been awarded a design patent (not a utility patent) on their basic UI (an image of which is available here). Given the points Cutts made about Yahoo's copying of Google's design elements, it would seem like it would be possible for Google to challenge Yahoo using patents. Take that a step further and imagine how much anyone with a new web design could limit others from using similar design elements if they started patenting their web design as well. While it is annoying when someone simply copies a design you may have worked hard for, is it really that big a deal when the alternative is making everyone completely reinvent the wheel every time they design a website?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Bum, Dec 13th, 2006 @ 5:22am

    Authoring

    Shouldn't this be copyright since html is authoring not programming.

     

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  2.  
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    Anonymous Coward, Dec 13th, 2006 @ 5:47am

    Re: Authoring

    all software should be copywrite, but that is a whole nother can of worms.

     

    reply to this | link to this | view in thread ]

  3.  
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    Sanguine Dream, Dec 13th, 2006 @ 5:49am

    I agree...

    with comment #1. Its bad enough we live in an age where one can patent a business model if you enough money. If companies start to patent html code, this will get very ugly very fast (and then imagine adding lawyers to the mix).

    Copyright makes sense, perhaps even trademark (to eliminate possible confusion when two sites look similar) but patent is overkill and will only cause problems.

     

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  4.  
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    Anonymous Coward, Dec 13th, 2006 @ 6:20am

    HTML Patenting

    Didn't someone already patent the OBJECT and APPLET tags? That rind a bell for anyone?

     

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  5.  
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    patentmonkey, Dec 13th, 2006 @ 6:32am

    Design patents, copyright, and trademark

    I don't think google would go after someone that copied their design with a design patent alone. They might also argue copyright and perhaps trademark infringment (liklihood of confusion as to the source).

    I still don't think we will see many designers filing for and enforcing design patents on their website designs.

    www.patentmonkey.com

     

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  6.  
    identicon
    MusicMan, Dec 13th, 2006 @ 6:37am

    The problem is that Copyright doesn't offer enough protection for some of the innovations.

    You can with code recreate the same effect and not violate the copyright because the the code substancially different in content. Use a differen tag or function call to do the same thing

    It would be like saying someone who patented an invention was only covered when it was made of plastic, but if made from nylon on alluminum you have no protection.

    These are software machines... copyright doesn't do enough.

     

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  7.  
    identicon
    Anonymous Coward, Dec 13th, 2006 @ 6:49am

    Copying HTML is a gray area, but copying graphics (artistic work) is a whole different story. If they copied some Yahoo graphics and then tried to blur them out to hide that they were from Yahoo, that's a huge no-no.

    Directly copying an existing website is either flattery, or extreme laziness, but whatever the case, as long as they don't use any actual graphics or trademarks from the original site in any way, I don't think the site owners have much of an argument, other than plagiarism. And unless the website is being used to make some sort of profit, the plagiarism claim doesn't hold up very well either.

     

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  8.  
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    Anonymous Coward, Dec 13th, 2006 @ 7:01am

    Test for obviousness

    "You can with code recreate the same effect and not violate the copyright because the the code substancially different in content. Use a differen tag or function call to do the same thing"

    Sounds quite easy - obvious even.

     

    reply to this | link to this | view in thread ]

  9.  
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    james-42, Dec 13th, 2006 @ 7:35am

    design patent value?

    It is my understanding that design patents are so limited as to be useless. Any variation of the patented design, a different color, or even a different font, would circumvent the patent. But being a designer and not a lawyer, I don't know how accurate this is, anyone care to illuminate the subject?

    As a designer (both product and web), I have 'borrowed' HTML (and CSS) bits and pieces from all over. Anytime I start off coping an entire design, I all ways wined up modifying it to the extent that the original design is obliterated. I think that is just part of the process of any moderately decent designer (which is about what I consider myself).

    As for patenting HTML (or CSS, XHTML, etc...) what are they going to do, patent a one, two, or three column layout? It think 'prior art' will take care of 99.8% of any potential conflicts.

     

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  10.  
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    Secesh, Dec 13th, 2006 @ 7:46am

    Jeremy himself prefers Google

    OK, I see the point of the article, and shame on Google... but what I found interesting was Jeremy's screenshot showing the google page.

    His default search engine is google -- and not just because he was out fact-checking for yahoo. He searched for n800jl on google, which appears to have something to do with aircraft.

    Also, since the whole thing is about the yahoo toolbar for IE7, why couldn't he use IE and turn on the toolbar before capturing his screen?

    I just find it entertaining that not even Yahoo insiders use their search engine.

     

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  11.  
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    Accuracy Jerk, Dec 13th, 2006 @ 8:10am

    Re: Re: Authoring

    CopyRIGHT, not copyWRITE, you twit!

    (Then again, you probably think "loose" means to not have or be able to find something (lose), instead of "not tight".

     

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  12.  
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    Anonymous Coward, Dec 13th, 2006 @ 11:35am

    We need to find an official retarded child and show him every patent and throw out the ones he giggles at.

     

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  13.  
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    |333173|3|_||3, Dec 13th, 2006 @ 9:29pm

    Copyright would cover the design not the coding, I think, so if I were to be the first person to come up with a page design, then I would hold the rights to it, no matter how someone else produced the effect: an analogy, although an imperfect one; If i were to draw a picture using a pen, and you were to copy it using a pencil, it is still copied.

    COnversely, unless a legitimate patent can be found for the TAG, not the use, then copying a snippet would be hard to prove, since it it likely that one method is the most efficient, and so most people would tend to use it.

     

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  14.  
    identicon
    Mike Brown, Dec 14th, 2006 @ 8:42am

    Design Patent

    It is my understanding that design patents are so limited as to be useless. Any variation of the patented design, a different color, or even a different font, would circumvent the patent

    That's not really true as an absolute statement - like most legal questions, it's all shades of grey. Compared to utility patents, design patents offer a more limited scope of protection. However, if that protection is appropriate to the invention, then a design patent offers useful protection for it. The shape of the IBM Selectric typewriter was protected by a design patent, for example (while the type ball mechanism was protected by utility patent(s)).

    The breadth of protection of a design patent extends only to the ornamental appearance of the "invention". There are no claims in a design patent, just the drawing (or, to be pedantic, there is one claim - "The design in the drawing"). So, the design patent protects what the drawing shows. In order to determine how broad this protection is, as in any other patent, you need to look at the patented design in view of the earlier patents and non-patent art - the more the patented design is a departure from what went before, the broader the protection.

    Color is usually not an issue, since design patents very seldom have color drawings. Color drawings would only have been used if the color were the feature which was inventive - so that using a different color would, indeed, be a different invention and properly circumvent the very limited "invention". Trying to claim color as an "invention" strikes me as very unlikely to succeed - which is probably why color drawings in design patents are effectively unknown.

    A different font probably won't circumvent a patent, either, unless it was the font which marked the difference between the patented design and the prior art (say, if the patented design was a type font).

     

    reply to this | link to this | view in thread ]


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