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After the recent "Look and Feel" Apple vs Samsung lawsuits, I've been wondering to what extent this might affect websites/webapps that offer functionality similar to other existing sites.

So what exactly would one have to be wary of to make sure they don't step on the toes of a big corporation?

I could see carbon copying a companies website/app (especially if it's a very distinctive product) being a bad practice that could get you some backlash, especially blatantly ripping off iconic terminology, but how similar is too similar?

Does the ten-foot rule apply to the web?

“If a reasonable person could not, at ten feet, tell the difference between two competitive products, then there was cause to believe an infringement was occurring.”

Or is there a separate legal precedent associated with the web?

And then where does feel, which is essentially the common term for UX, come in. Can you patent the way a website "feels", as in the flow, organization and functionality associated. I understand that you can't patent basic elements like radio buttons, but what about the layout and look of a large number of those elements used in combination to complete a certain action/s?

I know that the online shopping cart is still a bit of a Sword of Damocles for online retailers.

Where is the line drawn for website/webapp copyright infringement? Or is there even a line drawn yet?

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Good question, however, I am not sure that this is the place to get answers for it. (Do any patent lawyers lurk here or is it just UX guys?) Perhaps: answers.onstartups.com –  Danny Varod Jun 29 '12 at 20:48
    
I thought this too, but I figured people who follow the UX would know at least something something about laws associated with UX. Could be wrong though. Not sure if start-ups is the best option as this is a product is being developed for a 25 year old company. –  MobyD Jun 29 '12 at 20:54
    
There is no oldcompany.SE site (or patents.SE, law.SE or business.SE), so the startups SE site will have to do. –  Danny Varod Jun 29 '12 at 21:00
    
If you do cross post there, please put a link here. –  Danny Varod Jun 29 '12 at 21:51
    
I wish it wasn't. It probably is. If you're evil enough...it'd probably be a patent though. –  Ben Brocka Jun 30 '12 at 4:26

4 Answers 4

up vote 8 down vote accepted

Apple uses the legal concept of 'trade dress' to argue for look and feel infringements in which one could argue that UX (or, more specifically, UI) can come in to play.

Alas, there aren't any particular clear rules. IP law is gray, and often determined by those with the most lawyers. Add to it things like modern US patent law, for example, where it is getting to the point of being absurd when it comes to granting protection to software concepts.

So, in the end, it's less about what you are doing and more who you are doing it to. Don't copy from Apple if, in turn, your company demands royalties from Apple for patents you own.

The 'line' isn't drawn up by a standards committee, but rather by the whims of corporate legal departments on a case by case basis.

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I presume you mean "is UX protectable in its own right", whether by copyright or trademark or any other means?

In the US certain user experiences in software are patented. Naturally they must be novel and an invention in their own rights, but the famous kinetic scroll/elastic snapback behaviour the iPhone used was patented (I'm on my phone so it's a hassle to look it up now, but it should be fairly easy to find).

Since UX isn't generally able to be isolated from the problem it's solving I guess any software UX is as much protected by copyright as the software itself.

But in case you can't tell, I am not a lawyer!

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Here they present some of software patents: patentbolt.com A lot of Apple, but Samsung and MS as well. –  FrankL Jun 30 '12 at 14:02
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The problem is that they're often patentable without being innovative. Tablet versions of Windows had kinetic scroll and elastic snap back scroll effects before iOS existed. It seems anything techy-enough can slip through and be awarded a patent –  Ben Brocka Jun 30 '12 at 16:19
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I believe "novelty" is supposed to be a requirement for an invention being considered for a patent, but there's certainly a bunch of tech (and especially software) patents that seem to slip through without being particularly novel at all. –  Kit Grose Jul 1 '12 at 3:19

UserExperience (UX) is actually far too broad, subjective and generally intangible to be copyrighted.

Example: If the User experience of a restaurant is the combination of the food, service, ambience, brand and everything, that is not copyrightable, or even trademark-able or patentable.

However, the design of the menu is tangible enough to enjoy copyright protection, as is the brand and the signage, possibly the design of the building (if its unique)... and that is all much more like User Interface.

Restaurant Scene with Mr Creosote

The key is to define an element that is *Novel: Recognizably Unique* The main thing about Copyrights and Trademarks is that in order to enjoy any meaningful protection from others duplicating the material they protect, REQUIRES a degree of uniqueness. I would argue that there is almost nothing unique about Facebook's User Interface beyond the brand. Similarly, if someone were to file a copyright suit for something indistinguishable from words in the dictionary, they would have little hope of it standing up or being enforceable. Same with User Interfaces. The 10 foot rule would not be applicable unless, something was unique or special about the design. That special element is what you would want to copyright, trademark and/ or patent.

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I hope you dont take the image out... it makes it all bearable.. I might not be able to take life much longer without a little fun. It's important to making the point... yes it is. This restaurant experience is in fact copyright able as it is that unique... –  David Shantz WOW Jan 9 at 10:47

In Europe (mainland, not UK), software isn't patentable nor websites are.

Software not, because a patent has to be novel AND technical AND a physical matter. Software is code and not a technical, material matter. So, you are going to patent a computer with your special software as a system. It's technical and a material matter. The Apple elastic thing isn't protectable in Europe.

Websites are code like software. One could say it has a special tone and thus is creative and protected by a registered design, but website have no high art character. Therefore websites are minor creative acts and not protectable.

But European rights are bleeding and there are court decisions which are quite unclear. And Im not sure how this is handled in borderless internetland.

Added: Designs are a different topic and the possibility to infringe a registered design by accident is very rare. Why? Because the registered design has to be really new and original. No prior (graphic) art, no graphic trends or graphic styles. Which isn't suitable for most common websites.

Even copyright for software is bound to a high art character. It has to have some uniqueness and creativeness in it.

Meanwhile I did 2 software patents for a software process (no micro interaction like snap back effect), but still it's UX. So, how has it been done?

  1. We patented a system including app, server and software.

  2. One tries to cover as many technologies as possible.

  3. If there are patents in this field (and they forgot to cover your technology), one narrows it down to a very special use case.

May be like this: The snap back scroll effects might be patented by Microsoft before, but Apple patented it for Smartphone....

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As a matter of fact, both software code and websites are considered intellectual property, only these are protected by copyright laws not patents. Within the CDPA (Copyright, Designs, and Patent Act) 1988, websites are considered as 'databases' (a collection of data). Even designs may well apply to interactive systems, although legal cases are extremely rare outside the big giants war. –  Izhaki Jan 10 at 0:09
    
@Izhaki Please, you may have noticed my note "not UK"? CDPA is UK law, not mainland Europe. And even "intellectual property" like software or websites must have kind of higher art in it to be considered protectable. A javascript snippet isn't higher art nor a basic, plain html-code. You are not protected, because you write anything. You are protected, because you write something very fine and intelligent. –  FrankL Jul 2 at 12:43

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