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I'm looking to protect an innovative user interface design idea for a mobile application. It took a lot of work and creative effort to come up with a design that satisfies the particular constraints I'm working under, and I would like to protect the design from copy-cat attempts.

Since the design will be used globally, this is a generic question, but the most important markets are the US and EU, so I would prefer details that apply specifically there.

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1 Answer 1

In the EU and Germany you can protect your design. There is no rule for all, but several national laws.

As far as I understood the process, you are going to protect your design following this guide. There will be no examination for the uniqueness of your design nor a protection for duplicates in terms of secureness. If a possible duplicate exist, you have to prove your uniqueness at the court.

For an idea what this means, I give you an example of German law, which is the biggest economy in Europe btw.

In Germany you can protect design, if...

A design must be new [...] This means that no design that is identical or differing only in immaterial details from the design applied for has been published[...]

Furthermore, the design must have individual character [...in the eye of...] the so-called "informed user" [...]

[But] novelety and individual character are not examined by the German Patent [...] [It] will be examined by the civil courts when there is a dispute [...]

Source German Patent and Trademark Office - Design | Page 6

  • That means you have to show your design first to DPMA or european equivalent.
  • It has to be unique for a normal user.
  • It shouldn't differ in immaterial details only. What that means in terms of software is a hard question. Best you ask a lawyer for it.
  • And in case of doubt, you have to go through the courts to protect your design and prove your uniqueness.

But there is a common workaround for the gaps, that exist if you protect a design: Usually you go for a patent, if you want to secure your software, not design only!

Discoveries, mathematical methods, computer programs and business methods as such are not regarded as inventions.

Source: European Patent Office.

But a patent has to offer a unique solution to a technical problem. Which isn't done by a software only. So you fill a patent for the whole computer system as well as your software running on it. You secure the computer AND the software as a complete system. Thus you have proven your technical and material side of your invention and its patentable.

And going this way, you can protect it easily EU-wide. Nevertheless, you definitely need a lawyer for the whole process.

Sidenote: As far as I know, a behaviour like Apple's elastic drawback at end of lists can't be protected in the EU. May be they did it nevertheless.

Edit: Just read a (german) article about the issue, that you can't easily fill a patent for software in Europe. It mentioned, that even Konrad Zuse recalled his patent claim, because it needed to much time and it wasn't sure he obtains a patent on his invention - the first computer Zuse Z3. Probably the first patent claim in computer history (german only, but worth a quick look).

Important: This isn't a legal advice as I'm not a lawyer or in this matter somehow. It's my personal opinion only.

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+1 for good references and an honest answer. Was this just through research or do you have experience dealing with this first hand? –  Loren Rogers Oct 25 '12 at 13:45
    
I haven't patented a software (as a system) yet, but was very close. So just research. –  FrankL Oct 25 '12 at 17:23

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