[ender7]

Gruber's argument is dependent on the assumption that only people like Nathan Myrvold hold what I'm going to call "bullshit patents".

"Google isn’t arguing against a handful of never-should-have-been-issued software patents. They’re not arguing against patent trolls like Myrvold and his shell companies like Lodsys — companies that have no products of their own, no actual inventions, just patents for ideas for products."

Unfortunately, just because you actually make products doesn't mean that you are incapable of holding and/or abusing bullshit patents. Apple owns more bullshit UI patents than most other companies that I can think of, and they've made it clear over the years that they think it's morally right, not just defensively necessary, to patent user interface ideas.[1]

Apple has not, historically, abused its patent portfolio to the same degree that Microsoft or Oracle have.[2] However, now that they've thrown their hat into the same ring, they're getting lumped in with these dastardly anticompetitive badguy companies when this comes up in the tech press. I'm sure that makes Apple - and Apple fans - uneasy. It seems like they're being blamed for their newfound parters' bad behavior. Well, I'm sorry. You sign a deal with the devil, and you better buckle in.

[1] As as someone who designs and builds UIs for a living, I think this is complete bullshit. Copyright should protect UI; patents should not.

[2] Although they have done so. Just not as much.

[GHFigs]

Copyright should protect UI

But it doesn't. http://en.wikipedia.org/wiki/Lotus_v._Borland

[ender7]

Very true! I was thinking of UI art assets. Aspects related to the layout or behavior of a UI (having a touchscreen interface, momentum scrolling, etc.) should be (IMO) neither patentable nor copyrightable.

When you get into issues of truly ripoff UI, trade dress [1] seems like the most natural solution to me. However, the legal standing of UI w/rt trade dress is still being determined.

[1] http://en.wikipedia.org/wiki/Trade_dress

[falien]

um, that is not what that decision says. It says the interface may be covered by copyright to the extent that it contains expression. That would seem to me to have a large overlap with look and feel patents.

[GHFigs]

You are mistaken.

It is saying that copyright applies to a user interface insofar as elements of it are subject to copyright on their own, but that "a user interface" is not itself expression, not itself subject to copyright. If you copied every last detail of my interface except the icons or other elements subject to copyright, I would have no valid claim that you infringed on my copyright.

(NB:I am not saying this is bad or wrong at all. Only that it is so, and that it's relevant.)

The trouble that stems from this is that what we call a "user interface" is not exclusively or even mostly elements subject to copyright, but consists of methods and behaviors that are often the product of much ingenuity and innovation. This is why various parties have sought patents for aspects of the interfaces they develop--because those things aren't subject to copyright.

[falien]

I disagree with your interpretation. The collection of expressive elements such as icons seems copyrightable in aggregate as much as any of the individual elements. What that decision says is not copyrightable is an organization of data (including choice of words that would struggle to qualify as expressive). If they had allowed the copyright on that then things like logical taxonomies would also be copyrightable. User interfaces not built with a platform's standard interface elements are more akin to works of art and can be expressive and assuming it was copyrightable then determining if a clone was infringing would depend on if it was a true clone or if there was some transformative change.

I'm not sure what is accepted case law, but the cited case seems much narrower to me than you are implying.