Design is not only abou aesthetics, though law could not agree

[openp2pdesign]

Most likely we would find that IP laws regarding design will consider it like "the visual design of objects that are not purely utilitarian".
Anyway, many many designers, authors, researchers and schools of design would reply that design is not only about the "aesthetic" side, even if there is some design that is only about "aesthetic". So probably this definition would make things easily, by complicating the discussion on another side. So again, probably it's all about deciding between design according to law or design according to designers...

Probably we should state clearly in the definition that design is not only about aesthetics, but currently according to law this may be the case. It is a so complicated issue that probably the best thing would be to state the problem clearly without addressing it in our effort.

[trox]

Note, that the legalese is "visual design" not "aesthetic"; while IANAL, "visual" is sort of neutral for what can be percieved by looking at, while "aesthetic" seems to carry a notion of value. So while the designers etc. you cite are certainly correct that design is not only about the "aesthetic" side, they are not contradicting the legal terminology of "visual" ... will follow up on this in April / Mai when discussing the issue with law students.

[123456tom]

Community design law (applicable in all EU) says:

Design means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation.

Product means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get0-up, graphic symbols, and typographic typefaces.

Further requisites are necessary for protection, in particular the design has to have individual character and be novel.

Not sure how much this is in accordance with designers view...

[openp2pdesign]

Many thanks @123456tom ! I think it is a good starting point and it may also be included in the definition, maybe together with another definition from the designer's point of view. Does it apply only to product design or also to graphic design? What about other kinds of design like fashion design or interior design? It would be great to discover more on the legal side of design disciplines...

[123456tom]

It basically applies to everything that can be defined as a industrial or handicraft item, therefore broad enough as to include product design (shapes), graphic design (ornamentation), and also fashion design. It probably excludes interior design intending it as the organization of space but not pieces of furniture of course, as the former hardly can be obtained as an industrial or handicraft item, at least in my understanding. In any case, novelty and individual character needs to be met, which, for example in the case of fashion design can exclude most trivial items.
[OFF TOPIC: are we creating some sort of duality between those who only follow github and those who only follow the ml?]

[openp2pdesign]

Thanks @123456tom ! I'd say this is a great jump! Now we have something stable for starting to think about! A more advanced question: what about service design? Is there anything at all?

About the off topic: no, don't worry, I will always fill the gap between the mailing list and GitHub. The mailing list should be for longer discussion and here for more direct and specific suggestion of action, but since some people will use the mailing list and others GitHub, I will always mirror the discussion and the questions on both tools.

[123456tom]

I am actually new to the concept of service design. If the wikipedia entry is the correct one (http://en.wikipedia.org/wiki/Service_design), after a quick look I'd say that it is probably excluded since it cannot be linked back to a product as defined above (industrial or handicraft produced). Also excluded are sounds, smells, colors and word as such. Houses tend to be excluded, although cars not. There have been cases where a movable house on a kart (to be attached to a car) has been considered protected. It might help to understand what can be covered the fact that in order to obtain a community design registration indication of the class of products following the Locarno classification (http://www.wipo.int/classifications/nivilo/locarno/index.htm?lang=EN) has to be made. Keep in mind though that such indication does not limit the scope of protection (this is a quite counter-intuitive rule: you have to apply a shape to a product, say a screwdriver, otherwise your application will be rejected, but then you can successfully sue somebody who applied that shape to a lamp...).

[trox]

so essentially we're agreeing on the legal definition, nice

@tom: can you refer to case law where relevant?

also: from discussions with architects I understand that they argue houses are covered by copyright. Any comments on this?

/ Peter

On 5 Mar 2013, at 18:15 , 123456tom [email protected] wrote:

I am actually new to the concept of service design. If the wikipedia entry is the correct one (http://en.wikipedia.org/wiki/Service_design), after a quick look I'd say that it is probably excluded since it cannot be linked back to a product as defined above (industrial or handicraft produced). Also excluded are sounds, smells, colors and word as such. Houses tend to be excluded, although cars not. There have been cases where a movable house on a kart (to be attached to a car) has been considered protected. It might help to understand what can be covered the fact that in order to obtain a community design registration indication of the class of products following the Locarno classification (http://www.wipo.int/classifications/nivilo/locarno/index.htm?lang=EN) has to be made. Keep in mind though that such indication does not limit the s cope of protection (this is a quite counter-intuitive rule: you have to apply a shape to a product, say a screwdriver, otherwise your application will be rejected, but then you can successfully sue somebody who applied that shape to a lamp...).

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[openp2pdesign]

thanks @ptroxler for reminding about architectural design: since few people have raised the question in the past, probably it would be good to understand how to treat architecture (and if to include it in some way in the definition).

@123456tom another question: what about design as a process? If I remember well, in the USA processes can be patented.. what could be the scenario for design processes?
Furthermore, one thing that may be made more clear within the definition, which are the cases when a blueprint of a project may be protected (maybe even copyright directly) but not the realized object / project from it? I remember that in the Open Hardware world this problem was present...

[trox]

On 5 Mar 2013, at 19:49 , Massimo Menichinelli [email protected] wrote:

what could be the scenario for design processes

even though this was a question to Tom, I'd like to chime in here:

(1) I'm not so worried about the patenting approach as patenting requires explicitly stating claims and describing the process (see here my most favourite US patent story: http://www.npr.org/blogs/money/2012/08/01/157743897/can-you-get-a-patent-on-being-a-patent-troll)

(2) @massimo: I wonder if you as a designer really believe that "designing as a process" could be described sufficiently in "claims" so it would be patentable and defendable as such in court

(3) and arguing more legally: as "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application" (TRIPS, Art. 27.1) -- a lot of designing (as a process) would most probably have to be considered prior art, including design thinking ... right?

[openp2pdesign]

@ptroxler well in my specific case would be learning what can be applied in terms of patenting in order to avoid patenting design processes ;)
What can be done actually for making Open patentable projects like hardware is not "protecting" but "making it prior art in order to avoid that somebody may patent it later", for example.
The question is more if there's anything that we can learn/adopt from law about design as a process (even if it's something very difficult to document) that may fit in a definition of an Open Design (as a process and not just as an object)

[trox]

@massimo: I still would want to understand if there is reasonable indication that designing as a process would be practically patentable before worrying about making it prior art through defensive publication etc.

i.e.: do we really have to bother?

On 5 Mar 2013, at 20:21 , Massimo Menichinelli [email protected] wrote:

@ptroxler well in my specific case would be learning what can be applied in terms of patenting in order to avoid patenting design processes ;)
What can be done actually for making Open patentable projects like hardware is not "protecting" but "making it prior art in order to avoid that somebody may patent it later", for example.
The question is more if there's anything that we can learn/adopt from law about design as a process (even if it's something very difficult to document) that may fit in a definition of an Open Design (as a process and not just as an object)

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[openp2pdesign]

@ptroxler well, personally I do bother about design processes, they are at the core of my research, so I would at least investigate a bit what can be applied to them if @123456tom has a bit of time for it (thanks for the effort!), even if it does not make it to the final definition (but I would like to have something about the design process in the definition). For example, "what is taught at (at least some) Design school" is not just the history of designers and manufacturing processes but especially design processes. At least in my experience, I've experienced working with people with a formal training in design / architecture and people without it, and the biggest difference is that normally people without a training do not have an awareness about design methods and processes. So design processes are a big part of the design world
Regarding patenting a process, it may be a tedious process that no designer would like to do, but probably it can be done (be the patent granted or not). At least according to my very limited knowledge of patents. Single designers would probably not care that much, but big design firms may probably be interested: a couple of years ago Fjord, on its website, claimed to have a proprietary process (with its own copyright, not patent...).

[trox]

Yes, I agree we should bother to the extent that we know if we need to be worried.

And of course people copyrighting and trying to license "methods" (or even blunt common sense) is a practice many consultants try to generate income ... it's (imho) a bit like copyrighting/licensing TV show formats

As long as design is taught at (publicly accessible) design schools (and not licensed to design students) there is still hope, isn't it

On 5 Mar 2013, at 21:13 , Massimo Menichinelli [email protected] wrote:

@ptroxler well, personally I do bother about design processes, they are at the core of my research, so I would at least investigate a bit what can be applied to them if @123456tom has a bit of time for it (thanks for the effort!), even if it does not make it to the final definition (but I would like to have something about the design process in the definition). For example, "what is taught at (at least some) Design school" is not just the history of designers and manufacturing processes but especially design processes. At least in my experience, I've experienced working with people with a formal training in design / architecture and people without it, and the biggest difference is that normally people without a training do not have an awareness about design methods and processes. So design processes are a big part of the design world
Regarding patenting a process, it may be a tedious process that no designer would like to do, but probably it can be done (be the patent granted or not). At least according to my very limited knowledge of patents. Single designers would probably not care that much, but big design firms may probably be interested: a couple of years ago Fjord, on its website, claimed to have a proprietary process (with its own copyright, not patent...).

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[123456tom]

This is an interesting discussion, let me try to cover a few points emerged.

1. Definition - Not sure if we should develop it on the basis of the legal definition of design. There are quite a few good reasons why this might be a bad idea, just to name a few, many things considered design by designers are not by design law; design law is particularly industry oriented; design law is but one law protecting design together with many other. It is however fundamental, in my opinion, to keep in mind what the law says, when developing such definition.
2. Processes cannot be registered as community design. When I say community design I mean the law applicable to the EU, in the US it might work quite differently.
3. A process, under specific conditions, can be patented, but patents and designs are two completely different things. This does not mean that they cannot coexists on the same item, imagine for example a complex product such as a car, which could be protected by design law on its shape, by patents on a specific feature of the engine, maybe other patents on the assembly line process that put together the car, utility models of specific components, trademarks especially 3D trade-marks, and many else, within and outside intellectual property rights.
4. The main difference between an (invention) patent and a community design is that the (invention) patent has to cover an invention, which is novel, useful and industrially applicable, in other words, it has to represent a new solution to a technical problem beyond what a professional in the field would have come up with on his own. There must be some inventive step. It has a specific functional character. Community design protects the shape, contour, texture and the like, something that is visible and can be appreciated by the eye. This does not exclude that the item can possess a function, however, when a designer is limited in its freedom to develop the design by a specific function, the scope of the right is limited accordingly, to the extreme where a community design cannot subsists in designs solely dictated by their technical function.
5. Another major right in cases of design products is copyright, which protects an original intellectual creation of the author. It can protect industrial design and applied art products, but the level of originality varies considerably (in the Netherlands, and Belgium for example, almost any design product will be protected also by copyright, while in other countries such as Italy, such product needs to achieve an artistic value to be protectable by copyright). We are talking about the product. The copyright on the blueprint might be a different thing to the extent that a blueprint is something different than its final product. I would say that when the blueprint in a CAD file is so final that it is sufficient to send it to the 3D printer to obtain the product, than the project in the blueprint can be already identified with the product. I would be interested in designers opinion on this point. The relationship between the blueprint and the final product is an indeed interesting one on which I have been working lately...

[123456tom]

ops, that got quite long... sorry.

[trox]

This is an intriguing question:

The relationship between the blueprint and the final product is an indeed interesting one on which I have been working lately...

The workflow from CAD to print is typically [1] CAD => [2] clean up CAD => [3] prepare for manufacturing => [4] generate machine code => [5] send machine code to machine

if we assume that the blueprint would be after stage [2](which in practice is an ideal situation), step [3] includes the definition of manufacturing parameters. for 3D printing this is mainly slicing, for milling its deciding on roughing and finishing, selecting tools, defining toolpaths

and people regularly play with 3D-printing speeds on certain machines during [5]

... so I wonder how much these (maybe uncreative because technical, professional) decisions "alter" or influence the product ...

/ Peter

[123456tom]

In my understanding a blueprint would be the stage where not only the object is present in its 2D/3D digital representation, but also where all the parameters for the creation of at least on item (meaning all the dimensions, measures, type of material in connection to the results sought, e.g. a given resistance/flexibility, waterproof, heat-proof, etc are determined. Of course such parameters can be changed, but is not necessary as they have been already defined. Is this what normally happens in reality?

Also, in what steps consists [2]?

[trox]

On 6 Mar 2013, at 14:30 , 123456tom [email protected] wrote:

In my understanding a blueprint would be the stage where not only the object is present in its 2D/3D digital representation, but also where all the parameters for the creation of at least on item (meaning all the dimensions, measures, type of material in connection to the results sought, e.g. a given resistance/flexibility, waterproof, heat-proof, etc are determined. Of course such parameters can be changed, but is not necessary as they have been already defined. Is this what normally happens in reality?

hmm... particularly when machining parts the designer typically has not enough knowledge to determine all fabrication parameters and the manufacturer might choose different machines and/or tools to achieve a certain characteristic. also "maker-designers" would most probably not determine machining parameters upfront but only when preparing a part to be machined.

Also, in what steps consists [2]?

CAD files quite often contain imperfect elements that by lazyness of oversight of the designer are not detected -- they might even be invisible, way outside the volume of the part in question etc. or they are specified wrongly which is not visible and goes unnoticed until the file is prepared for machining or printing. The machine does not forgive "wrong" instructions, but humans might not notice them.

Therefore it is a specific task to check a file for such anomalities. This is typically done by the manufacturer, not the designer.

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[openp2pdesign]

I've just added a proposal for the Intellectual Property section with the commit ee7c622 . Let me know what you think about it. The idea is that we define a sort of primer / framework for making it clear to the open designers which are the different ways that can protect their project (example: trademark for brand identity, copyright for illustration, design rights for product design, no protection for interior and service design - as it seems - and so on) and what they can do in each case for sharing a project as Open Design (example: for copyright, use certain CC licenses). We would have to elaborate this a bit more, and base it on the most common laws (even if the situation may change in different countries, at least it would be a starting point for understanding what is open design also legally). What do you think about it?

[openp2pdesign]

Following a suggestion from @ptroxler I have now divided this section into copyright-like forms of protection from patent-like forms or no protection forms with commit 4616378. It should be now a bit clearer how to distinguish among all the forms of protection, though we still need to define and explain them.

[123456tom]

I agree with the IP section.
Not sure about the registered vs. non-registered classification.

If we want to keep the design product as the central concept, then we should consider all the possible forms of protection (or at least those within IP). Which seems to me also what @openp2pdesign mentioned in his message.

If we agree with this then registration is not in my opinion a good way to classify.
Either we treat IP as one category, and within it we subdivide different types, or we create at least the 4 different categories: copyright (registration=no), design rights (registration=yes&no), patent/utility patents (yes), trade marks (yes&no). Plus a residual category (know-how, trade-secrets, etc). If we were to classify by registration we would have key concepts, such as design rights, split between two categories, and the same for TD.

This, of course, from a EU law perspective. But again, if we talk about law we need to consider which law we are talking about.

[trox]

It's probably two things we need to differentiate

(1) the various types of IP (which I think is a very important distinction per se)
(2) the handling of IP "protection" which determines your strategy of "opening" vs. "keeping it open" (which seems relatively clear in the case of copyright and patents; but I'm not sure about design rights and TD)

On 30 May 2013, at 15:17 , 123456tom [email protected] wrote:

I agree with the IP section.
Not sure about the registered vs. non-registered classification.

If we want to keep the design product as the central concept, then we should consider all the possible forms of protection (or at least those within IP). Which seems to me also what @openp2pdesign mentioned in his message.

If we agree with this then registration is not in my opinion a good way to classify.
Either we treat IP as one category, and within it we subdivide different types, or we create at least the 4 different categories: copyright (registration=no), design rights (registration=yes&no), patent/utility patents (yes), trade marks (yes&no). Plus a residual category (know-how, trade-secrets, etc). If we were to classify by registration we would have key concepts, such as design rights, split between two categories, and the same for TD.

This, of course, from a EU law perspective. But again, if we talk about law we need to consider which law we are talking about.

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[openp2pdesign]

@123456tom Could it be something like the version at commit 377f48d ?

[openp2pdesign]

Hi all,
I've started to define the IP specifications (i.e. when a project can be protected by a specific IP form, and how to consequently share it) with commit 393627c. Please have a look at the definition and tell me if there's anything to fix in what I've written, or if it's ok. @123456tom I've used a lot your paper for this task.
Please not that we stil have to define what to do with patents, trade mark and trade dress.