AIPPI Congress Report 14: GUI Goo for Chewy Chewing

The AmeriKat chewing over
the GUI resolution

If the title of the post does not ring a bell, then you are not a Dr Seuss fan.  In any event, Tom Reid (Accenture and AusKat) is back in action with a summary of AIPPI's resolution on the protection of Graphical User Interfaces (GUI) from Sydney.  Tom reports on the goings-on: 

"Delegates at this year’s AIPPI conference avoided swallowing their gum when they passed a resolution on IP protection for graphical user interfaces (GUIs). 

The resolution defines a “GUI” as “an interface which allows users to interact with electronic devices through graphical elements instead of typing characters”—basically, for desktop computers, everything that came after command-line interfaces, and for phones, everything beyond simple telephone number input.  Many of those born after the mid-1980s, who may never have used a computer or a phone without a GUI, may think of the GUI and the device as ontologically one and the same, at least in everyday use.  The perceived value of a meticulously-designed GUI in the consumer marketplace was of course amply demonstrated by the smartphone wars. 

The focus of AIPPI’s definition, and therefore ultimately the resolution, is on visual elements: icons, menus, scroll bars, windows, transitional animations, and dialogue boxes.  The resolution does not specifically address non-graphical elements of a GUI, such as sounds (where used as auditory signals, eg calendar alert tones, or as input, such as voice recognition) or other sensory interfaces (eg haptic cues such as vibrating alerts, and Apple’s “Force Touch” input feature) and the interesting questions these might raise (could a particular vibration pattern, say, be registrable as a trade mark?). 

Put very simply, the resolution states permissively that GUIs “should generally be capable of protection” by patents, designs, copyright, and trade marks.  While on its face a somewhat anodyne statement, there is some elaboration.  

In relation to designs protection, which has been a focus of the relevant WIPO Standing Committee recently, the resolution states that a GUI should be protectable by design rights without requiring a connection to a physical device; that statement is relevant to those common law jurisdictions, including Australia, where designs protection has in practice been limited to the physical form of a product (the “at rest” concept).  Expanding on that, the resolution states specifically that movements and transitions (think of the way an Apple OS X desktop window “funnels” into the Dock when minimised, as a classic example) should be protectable by design and trade mark rights, and that registration authorities should allow the filing of data that can dynamically represent them in their true form, as opposed to permitting only drawings that imperfectly reproduce them statically. 

In addition, the statement that GUIs “should generally be capable of protection by patents” perhaps implies that software should not, per se, be unpatentable subject matter, insofar as GUIs are ultimately embodied in code (sometimes in the broader sense of firmware).  The patentability of computer-implemented inventions was, however, the topic of a separate and specific AIPPI resolution at the same conference. 

These things aside, while some individual elements of a GUI—an icon or a desktop background, for example—are already capable of protection in most jurisdictions today by at least some combination of traditional copyright, design, or trade mark (and related) rights, the system is patchwork, and the nature and scope of protection offered varies greatly depending on the head of IP into which the element is to be shoehorned.  For some decades now, the wider question has, of course, been whether the GUI overall, and its look and feel in particular, should be more specifically protectable in some way, perhaps by a tailored sui generis right.  The question is becoming more pressing as the importance of the “user experience” is consolidated in the consumer arena and expands to commerce and industry; white collar workers will recall how recently it was that the office computing environment invariably lacked any of the slickness of their gadgets at home, but that situation is now beginning to change.  

AIPPI delegates resolved in favour of a statement that sui generis protection should not be necessary, having regard to the protection that “should be available” under existing heads of IP.  But the key words there are “should be available”, recognising that where traditional IP rights (especially patents) are curtailed in their application to GUIs, the scope of protection available may not be adequate.  What AIPPI considers should be done, if anything, if that situation persists remains to be seen."