On March 25, 2013, I spoke on the record with Eric Gould Bear (left) about software innovations, software patents and the trials and tribulations of litigating software patents long after they were first written.
Bear is an inventor on over 100 patents and patent applications in the software space. He has spent over 25 years working with numerous Fortune 500 corporations with respect to assisting them in the creation of new user experiences. He is also a founder of the design studio MONKEYmedia, which recently launched a patent infringement lawsuit against Apple, and which also has a patent infringement lawsuit pending against Sony, Disney and others. Bear is also a testifying software expert witness.
On why his company, MONKEYmedia sued Apple:
BEAR: Look, MONKEYmedia sued Apple because Apple all but said we can’t negotiate with you unless you sue us. The only emotion to have is sadness, because I’m a huge Apple fan. I learned to program on an Apple ][+ and was an intern at Apple right out of graduate school. In my family – my wife and my kids – everyone’s got a MacBook Pro, everyone’s got iPhones and iPods. We’ve got an iMac on the kitchen wall, a Mac mini for a server, and an AppleTV in the study. I have no negative feelings towards Apple. I’m an Apple shareholder and want everyone to be wildly successful. We also want to be able to find a balance that celebrates synergy between independent inventors and the companies that have the ability to get real products out into people’s hands.
Discussing the approach for getting your arms around a new software project:
QUINN: How you get your arms around what is going to wind up being, at the end of the day, a monstrous task that starts with a design document:
BEAR: It’s important to remember that ideas are a dime a dozen. And what matters at the end of the day, in my mind, is what works well for people. It comes down to making sure that your flash of genius is a fit for what’s valuable to real people in everyday life. Whether in a consumer space or in business, it doesn’t matter. The underlying principles of making great design come down to how people act in the world. How do they think about themselves? What do they feel about your product? What do they think about each other? And where are they running into challenges in either accomplishing things or living life to its fullest. So, if it starts with an idea, I would challenge that premise to begin with – because I believe great design often starts with a question as opposed to an answer.
On the fun part of a software patent project. After you have a good sense that the core of what you want to protect is unique, now you get to dream about what the software could do. Here is our discussion on that issue:
QUINN: With software, if you can dream it you can do it and at least describe it – and the limiting factor is bandwidth and money. So if you can get to a point, I always tell people, where you have this core uniqueness and then dream, now we’re starting to go down a path where you potentially would have something that could be relevant five to ten years down the road.
BEAR: Codifying that dream is part of what we call user experience strategy. And it includes defining the pillars of that experience and the bounds for how it gets framed for end users through an evolution of business processes and technologies of the times. And, you know, it makes a lot of sense to lay that out first and then use it to write the patents. I think the trick is being able to put one’s self forward ten years, and then picture yourself sitting in a Markman Hearing and having your claims being interpreted against a new technology landscape. Take something that might have been designed yesterday for a desktop screen with a mouse and a keyboard and then translate to a touchscreen on a tablet, to then tactile, voice and gestural kinesthetic interfaces – another step farther.
For example, MONKEYmedia has a new family of patent applications that I co-authored last summer about navigating through a three-dimensional video space on a handheld device. But if you look forward ten years, it’s likely that the navigation will not be bound to a surface you’re holding in your hand and the system could be more like Google Glass or a Microsoft Kinect type interface for navigating. So everything needs to be written in such a way that it can scale beyond the technology that we immediately know. Consider how to map it so that at least one of the claims can apply to a new form factor, without being shut down. You don’t want them so broad that they’re killed with prior art. And you don’t want so narrow that they’ll become obsolete by the time they issue and not be infringed.
On the inspiration innovators can find from science fiction:
BEAR: Well, it’s very difficult. And it may sound crazy to you, but a great place to go to look at where things could go is science fiction. Not necessarily literally, and not to say those inventions are going to be what comes out, but science fiction establishes the bar in people’s minds for what the future could be. And, in a way, it shapes how we designers and engineers think about what we’d want to make ourselves. In reality, creativity is informed by the things that we see around us; and science fiction is a lot of what we see. So it’s a pretty good predictor of the kind of things that will end up being made. If you can imagine, take your favorite science fiction film – whether it’s “Minority Report,” which was a great herald of the kind of gestural interactions that we’re developing today, or “Star Trek” – and identify the best user experiences. Ok, now ask yourself, “How would my invention work in the 23rd century?” And then, probably in reality, it’s going to be more like ten or fifteen years. Be ready for that!
QUINN: I’m a “Star Trek” fan and I totally agree with what you say because I think science fiction really does inspire the next generation of creative minds, the engineers and designers that ask “what if?” and pursue some rather interesting paths. There’s now research into teleporting atoms or molecules and the patent office last year issued the world’s first cloaking patent.
For more please see:
- Designing into the path of disruptive technology
- Drafting for litigation and a global economy
- The engineer vs. the designer perspective