America Doesn’t Do Enough to Protect its Innovative Designs

Originally published in Wired by David J. Kappos.

American innovators are known the world over for their design capabilities. If you mention the Apple iPhone, the Ford Mustang, or the Microsoft Xbox practically anywhere on the planet, images of those iconic products instantly leap to mind. All are distinguished by their technical excellence, but also by their brilliant designs.

What makes a design brilliant? Outstanding design not only appeals to the aesthetic, but cuts through the clutter and enables people to use products intuitively and effectively. Simplicity is a hallmark of great design. As the world becomes increasingly complex, well-designed technologies and products that reduce user complexity become critically important. The public’s awareness of and enthusiasm for good design has unquestionably grown over the past decade. One illustration of this trend is Kickstarter, which in the six years since its founding has successfully funded more than 5,000 projects in its “Design” category, collecting hundreds of millions of dollars in crowd-sourced financing.

But simplicity is not simple to achieve. “It takes a lot of hard work,” Steve Jobs once said, “to make something simple, to truly understand the underlying challenges and come up with elegant solutions.” Simplicity takes more thought, more time, more work—and more investment.

Our laws and policies covering design patents play an important role in promoting and protecting that investment. Critically, this includes requiring infringers to pay design patent holders for all damage caused, which discourages infringement and encourages the development of new and innovative designs by providing innovators the opportunity to recover their costs without being undermined by free riders who have not made the same investment. Competitors must instead rely on differentiation and innovation to set themselves apart, further benefiting consumers. To facilitate the continuing development of efficient, simple and intuitive products, the Partnership for American Innovation supports strong protections at home, as well as the establishment of international norms, to incentivize and reward great design.

In a 2013 report on design-driven innovation, the European Commission observed “companies that strategically invest in design tend to be more profitable and grow faster.” Businesses have taken notice: U.S. design patent applications increased by about 40 percent between 2009 and 2013, and the annual rate of industrial design applications worldwide has more than doubled over the past decade. Illustrating this growth, financial software company Intuit has increased design employees by nearly 600% since 2008, with CEO Brad Smith observing that “better design is showing up in our business results.”

While detractors of design rights seek to imply that design law is new, history shows otherwise. The first design patent was issued in 1842, and the value of design was recognized by the Supreme Court as early as 1871 in its first design patent infringement case, Gorham v. White. Innovative companies have used design patents ever since as a complementary form of intellectual property protection to deter copyists from stealing the essence of their products.

Design patents have protected countless iconic designs over the years—the Singer sewing machine, the Coke bottle, and the Volkswagen Beetle, to name a few.

Design protection has wide international buy-in: in 2013, the patent offices in China, the European Union, South Korea, Germany and Turkey all had more design applications filed than the U.S., in each case predominantly by residents. It is evident that design innovation anywhere benefits global consumers everywhere. Given the increasing importance of design in the international economy, we should be wary of proposals that would weaken design protections. The U.S. in particular needs to continue its role as a beacon of design leadership, resisting ill-considered proposals that seek to drastically alter design protections—including serious consequences for infringement—that supply the teeth to our strong system. Changing the current framework would decrease innovation incentives and place design innovators at significant risk.

Recognizing that in our modern era great design moves globally, the Partnership for American Innovation also supports the establishment of international norms, such as the Hague Agreement, that level the playing field and create incentives to pursue great design. In May of this year, the United States joined the more than 60 other countries already participating in the Hague System for the International Registration of Industrial Designs, establishing basic uniform filing requirements that make it easier and less expensive for companies to seek worldwide design patent protection through a single application. The World Intellectual Property Organization is also working on a new international design treaty that seeks to align and simplify design registration formalities and procedures, which would benefit design innovators worldwide. Efforts like these can help bring the benefits of design protection to more people and enterprises at more affordable cost, and make coordination easier in an increasingly international world.

To promote great design, the law must afford meaningful protection for designers’ work. As a discipline, design creates usability in a world that otherwise cannot obtain benefit from much of today’s product and service capabilities. Great design means great products, which means great experiences for consumers, and great productivity for society. To maintain America’s lead in this field, it is critical that we continue to incentivize investment in great design by ensuring that our design protection laws remain strong.

David Kappos is the former director of the United States Patent & Trademark Office. He is widely recognized as one of the world’s foremost leaders in the field of intellectual property. Mr. Kappos is a senior advisor to the Partnership for American Innovation.

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