Thursday, September 3, 2009

Google's Design Patent on their Home Page

Google just got a design patent on their search home page. It's a patent that has the rank and file of the Internet tech world in an uproar. However, it's important to understand what's going on, here. For a really well written debunking of many first-impressions, I quote someone from the weblog site, Slashdot:

Design patent law is an area of great frustration for people. Design patents are relatively easy to obtain because of what they cover: essentially the identical design or any colorable imitation. As recently stated by the Fed. Cir., the test for design patent infringement is stated: "infringement will not be found unless the accused article 'embod[ies] the patented design or any colorable imitation thereof.'" Egyptian Goddess, Inc. v. Swisa, Inc. Therefore, to invalidate, the design must either embody the prior art or merely be a colorable imitation. This is a tricky analysis.

For companies like Apple and Google, design patents are helpful in preventing knock-offs. In this respect, the line is blurred between trademark and design patent law. However, they are not useful for much else since many of the elements of a design are functional (and a good lawyer can make that argument) and are not merely composed of distinctive elements.

Reebmmm at the Sladshdot article, "Your Rights Online: Google Patents Its Home Page"

There are a few other points to consider, but the one that really kills me is that it's Google's motto that hurts them the most in these situations. The first and most predictable reaction to any news about Google is to find a way to refer to it as "evil." Regardless of their clear intentions in an area (e.g. their relationship with the Open Invention Network and strong support patent reform), the motto slips into the argument and immediately becomes the centerpiece. Is Google becoming evil? Is this evil? How evil are they now?

I'm reminded of an Emo Phillips joke that involved a man who was about to jump off a bridge. Emo confronts the man and asks him if he believes in God. The man says yes. He further asks him questions about what religion he's a member of, eventually narrowing down that the two of them are both from a particular denomination of Baptist Christians, but then finds that they're members of very slightly different subsets of that denomination at which point Emo pushes the man off the bridge.

So too do we attack Google, not for being opposed to the general views of the tech community. They are, in fact, one of our greatest champions, supporting FOSS, patent reform and providing alternatives to many monopolistic software suites. And yet, here we are, asking if they've been evil today.