Design patents, which cover the look and feel of an interface, have becoming increasing important in modern-day patent wars. In the latest example, Microsoft is suing Corel for what it claims is Corel's unlicensed use of Microsoft Office Ribbon in Corel Home Office.
The ribbon is protected by no less than nine patents by Microsoft's count. Specifically, Microsoft is suing because "Corel Home Office offers a 'Microsoft Word mode' and other Microsoft Office app modes that make the program look and feel like Microsoft Office."
In addition, Microsoft claims that other Corel programs, such as WordPerfect, violate their intellectual property (IP) claims. For example, Help for WordPerfect X7 suggests that the user "simulate the Microsoft Word workspace until you are accustomed to work in WordPerfect."
Corel and Microsoft are no strangers to fighting each other in the courts. Corel sued Microsoft in July 2015 for violating its WordPerfect's RealTime preview feature patents in key Microsoft Office apps' LivePreview feature.
In this most recent case, Microsoft complains, "Corel has ... deliberately capitalized on the ready familiarity and rich functionality of the Microsoft interfaces and has taken advantage of Microsoft's years of effort and hundreds of millions of dollars of investment in those interfaces. Microsoft has warned Corel on multiple occasions regarding its blatant copying of the Microsoft interfaces. Despite those warnings, Corel has continued its infringement unabated. Corel's own actions are thus directly responsible for this lawsuit."
According to the Electronic Froniter Foundation, the key patent, "User Interface for a Portion of a Display Screen, is December 2015's stupid patent of the month. Microsoft is demanding that, "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."
That's not an extraordinary claim. Welcome to the wonderful world of patent lawsuits.
This is a perfect example of why, for example, companies that use Android pay Microsoft licensing fees for its unproven 310 Andriod-related patent claims. Samsung alone paid Microsoft more than a billion dollars Android patent fees in 2013 rather than chance paying even more. Heck, thanks to those patent fees, Microsft's most profitable mobile operating system, by a long shot, is Android. Companies figure, correctly, it's cheaper to pay up than to try to fight, and possibly lose, in the courts.
Vera Ranieri, a staff attorney on the EFF's intellectual property team, observed, "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."
Ranieri then cites law professor and chairperson of the American Bar Association Section of Intellectual Property Law Design Committee, Sarah Burstei, to make her case. Burstei believes that "design patents are often issued on a small part of a product, and often for things that seem unoriginal, not ornamental, or just ridiculous."
For example, Apple, in its Samsung patent lawsuits, has successfully claimed that the simple shape of a tablet is patentable. Frankly, I consider that absurd, but unless the Supreme Court takes the Apple v. Samsung case up, it's the law of the land.
These kind of patent lawsuits got their start because Lotus failed protect its once popular Lotus 1-2-3 interface design from being copied by Borland in its Quatro Pro spreadsheet with copyright law in 1996. Companies then turned to patent law to protect their interfaces.
The results in Apple v. Samsung have been mixed. Apple has been winning in American courts, but Samsung has won several cases in the European Union. The Apple v. Samsung legal wars are far from over.
As for Microsoft and Corel? I expect, with near certainty, that they'll settle out of court. Corel can't afford this lawsuit. I still think design patents are stupid, but what the EFF and I think about it doesn't matter. Corel would almost certainly lose the case in court under our current law and they know it as well as I do.