Stupid Patent Of The Month: Microsoft's Design Patent On A Slider

from the if-only-it-had-rounded-corners dept

For the first time ever, this month's Stupid Patent of the Month is being awarded to a design patent. Microsoft recently sued Corel for, among other things, infringing its patent on a slider, D554,140, claiming that Corel Home Office has infringed Microsoft's design.

The design patent, as detailed by Microsoft in its complaint, is titled "User Interface for a Portion of a Display Screen" and entitles Microsoft to own this:

More specifically, Microsoft claims to own this design of a slider.

Design patents aren't like the utility patents that most people think of when they think of patents. Unlike utility patents, which are meant for new and useful inventions, design patents are meant for new, non-functional, ornamental aspects of articles. They have only one claim, little to no written description, and usually a series of images detailing what exactly is being claimed. (A note about design patents: solid lines are used to show what is claimed; broken or dotted lines show the unclaimed "environment related to the design" or define the boundary of the design.)

As Professor Sarah Burstein points out on her fantastic Tumblr, design patents are often issued on a small part of a product, and often for things that seem unoriginal, not ornamental, or just ridiculous.

Microsoft's patent claims against Corel are unsurprising in light of how much money is potentially at stake. If Corel is found to infringe even one of Microsoft's design patents through even the smallest part of Corel Home Office, current Federal Circuit law entitles Microsoft to all of Corel's profits for the entire product. Not the profits that can be attributed to the design. Not the value that the design adds to a product. All of the profit from Corel Home Office.

The well-known Apple v. Samsung dispute addressed the issue of whether an infringer should be required to pay all of its profits for infringing a design patent that applies only to a portion of a product. Samsung had asked the Court of Appeals for the Federal Circuit to reject this reading, but the court disagreed in a May, 2015 opinion.

Samsung has now asked the Supreme Court to weigh in. In its petition for certiorari, Samsung points out the absurd results of this rule. For example, Samsung explains that under the Federal Circuit's ruling, "profits on an entire car—or even an eighteen-wheel tractor trailer—must be awarded based on an undetachable infringing cup-holder." In addition, given that many products will include multiple ornamental features that could be covered by design patents, this raises the possibility that a company could get hit for multiple judgments for all its profits.

That sounds pretty crazy to us. But that's exactly what might happen if Microsoft prevails against Corel. Putting aside whether Microsoft's design was actually new and not obvious in 2006 (when Microsoft filed its application), whether Microsoft needed the patent incentive in order to come up with this design, and whether it is even desirable to grant a company a government-backed monopoly on a graphical slider (we don't think so, that's why this is a stupid patent), the scope of damages for design patent infringement has the potential to become a powerful tool to shut down legitimate competition based on the mere threat of a lawsuit.

Reposted from the Electronic Frontier Foundation






Reader Comments (rss)

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  1. icon
    Roger Strong (profile), Dec 29th, 2015 @ 4:33pm

    I'm not sure I agree with you a hundred percent on your policework there, Lou.

    Yes, it's a stupid patent. Especially considering that everyone including Microsoft was using sliders for a decade before they filed their patent application.

    Still, that's only one minor detail of the lawsuit. As a whole, it's about Corel Office mimicking the **ENTIRE** user interface of Microsoft Office.

    Even that minor detail - the slider - is not mentioned merely because Corel used one. It's because they used the same slider design, in the same position in the UI, for the same page zoom function as Microsoft Office.

    Or to put it another way...

    > "profits on an entire car—or even an eighteen-wheel tractor trailer—must be awarded based on an undetachable infringing cup-holder."

    The lawsuit is about someone copying the design of the entire car, bumper to bumper, curve for curve. Whereas this story focuses only on the infringing cup-holder.

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

  2. identicon
    Anonymous Coward, Dec 29th, 2015 @ 4:35pm

    Obviousness is not required for a design patent. The design must be entirely devoid of functional aspects, which seems to put this design at risk-- it's easy to claim that the individual components all reinforce a scale to the user and a relative position within the scale.

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

  3. identicon
    Anonymous Coward, Dec 29th, 2015 @ 4:42pm

    did they measure the pixels?

    Perhaps the corel version is one pixel wider than the microsoft slider, rendering it not the same dimensionally...

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

  4. identicon
    Anonymous Coward, Dec 29th, 2015 @ 5:29pm

    i'm not even sure where to begin on the ridiculousness of this or frankly our whole patent system.

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

  5. icon
    TechDescartes (profile), Dec 29th, 2015 @ 5:42pm

    Clippy’s Gotta Get Paid

    Microsoft wants all of the profits from both sales of Corel Home Office? Oh, the humanity…

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

  6. icon
    MrTroy (profile), Dec 29th, 2015 @ 5:43pm

    Re:

    I was wondering about that. How is a slider a non-functional aspect of the interface?

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

  7. identicon
    Anonymous Coward, Dec 29th, 2015 @ 6:07pm

    In the case of Samsung vs Apple I hate Apple for being IP aggressors and resist buying their products for that. But now if I buy Samsung I am actually supporting Apple regardless because then Apple can, without doing anything, steal money from Samsung via our corrupt legal system.

    It's not like Apple even came up with most of the ideas they patented or that patents are even necessary to come up with said ideas. They are a natural result of technological progress. Many of the patents have prior/existing art and/or patents, many of these ideas are obvious, and many of them are probably ideas Apple stole from others and got patents on. It's just that Apple was the first to get patents and now they are suing everyone because, instead of focusing on innovating like their competitors they focused on patent acquisition. Now other products are worse off because of them, more expensive and they still keep stealing from others.

    What are we supposed to do to fix this broken legal system. This harms consumers and even makes it impossible to boycott companies that steal from others since all those companies have to do to respond to our boycotts is by simply steal from their competitors.

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

  8. identicon
    Anonymous Coward, Dec 29th, 2015 @ 6:45pm

    microsoft, huh?

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

  9. icon
    nasch (profile), Dec 29th, 2015 @ 7:09pm

    Re: I'm not sure I agree with you a hundred percent on your policework there, Lou.


    The lawsuit is about someone copying the design of the entire car, bumper to bumper, curve for curve.


    Thankfully, that's not actually illegal!

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

  10. icon
    Roger Strong (profile), Dec 29th, 2015 @ 7:46pm

    Re: Re: I'm not sure I agree with you a hundred percent on your policework there, Lou.

    Well sure. But if Isuzu started selling cars that looked identical to Bugatti Veyron - and selling them AS "Looks just like a Veyron!" - Bugatti's legal team would each have a Stimulating Personal Moment before filing suit.

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

  11. icon
    nasch (profile), Dec 29th, 2015 @ 8:39pm

    Re: Re: Re: I'm not sure I agree with you a hundred percent on your policework there, Lou.

    Bugatti's legal team would each have a Stimulating Personal Moment before filing suit.

    That is quite likely, but they would have - to my knowledge - only the slimmest of trademark cases. I doubt they could win except by straight up bullying a smaller adversary into submission.

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

  12. identicon
    Anonymous Coward, Dec 29th, 2015 @ 9:31pm

    Re: Re: I'm not sure I agree with you a hundred percent on your policework there, Lou.

    The lawsuit is about someone copying the design of the entire car, bumper to bumper, curve for curve.

    Thankfully, that's not actually illegal!


    Actually it is:
    1) Copying the design of the entire car is copyright infringement.
    2) copyright infringement is theft
    3) theft of an entire vehicle is Grand Theft Auto
    4) Grand Theft Auto is a video game, and thus copyrighted.
    5) See (1)...

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

  13. identicon
    Anonymous Coward, Dec 30th, 2015 @ 12:12am

    Corel should shut up and pay!

    This patent is more original than curves. A bar that sets a variable based on control position is bloody genius.

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

  14. icon
    Ninja (profile), Dec 30th, 2015 @ 1:29am

    Wait, wait, wait. Do we really believe Microsoft doesn't use something that somebody got a stupid patent out there? No, really, let them all sue each other for all the profits and we will see how long this will last...

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

  15. identicon
    al baker, Dec 30th, 2015 @ 3:28am

    Re: Corel should shut up and pay!

    "A bar that sets a variable based on control position is bloody genius"

    You forgot to add "on a computer", or did you mean the "bloody genius" people who designed this for use on a steam engine or valve radio or water tap or sextant or . . . . . ?

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

  16. identicon
    Anonymous Coward, Dec 30th, 2015 @ 7:10am

    Re: Clippy’s Gotta Get Paid

    I hear they're going after the windfall profits of WinZip and mIRC next.

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

  17. identicon
    Anonymous Coward, Dec 30th, 2015 @ 7:56am

    Re: Re:

    Good question, since it's a zoom slider. Perhaps the presence of alternative means for the function?

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

  18. identicon
    Anonymous Coward, Dec 30th, 2015 @ 8:12am

    Re:

    Obviously you don't understand how distinctive, how important that bezel is.

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

  19. icon
    Steerpike (profile), Dec 30th, 2015 @ 8:52am

    Re: Re:

    The slider is functional in and of itself, but the design patent only covers the look of it. You could get a design patent on the handle of a hammer, for example. You aren't patenting a hammer, but the look of your particular hammer.

    Still, this should be ineligible.

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

  20. icon
    Steerpike (profile), Dec 30th, 2015 @ 8:54am

    This sort of design patent should be ineligible under 35 USC 171. You can't get a design patent on an image, for example (a print, or a painting, or something like that, in and of itself). But as soon as computer UI elements are claimed along with the computer, they become allowable. It's bad policy.

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

  21. identicon
    Michael, Dec 30th, 2015 @ 9:49am

    Re: Re: Re: I'm not sure I agree with you a hundred percent on your policework there, Lou.

    You cannot be charged with Grant Theft Auto without the court stealing the term and typing it into their case log. Since stealing is bad, people can no longer be charged with this crime.

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

  22. identicon
    Privatefrazer, Dec 31st, 2015 @ 12:20am

    Can't see a solid line anywhere?

    ?

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

  23. identicon
    Anonymous Coward, Jan 1st, 2016 @ 3:17pm

    Dibs on squiggly line

    Now give me my "well earned" money dammit......your money is mine, the law says so......im a greedy fucking profit pig

    Excuse my heated language

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


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