Case: 14-1335 CASE PARTICIPANTS ONLY Document: 105 Page: 1 Filed: 08/04/2014 No. 2014-1335
IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT ______
APPLE INC., a California corporation Plaintiff-Appellee, –– v. ––
SAMSUNG ELECTRONICS CO., LTD., a Korean corporation, SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation, SAMSUNG TELECOMMUNICATIONS AMERICA LLC, a Delaware limited liability company Defendants-Appellants,
______
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, CASE NO. 11-CV-1846, JUDGE LUCY H. KOH ______
AMICI CURIAE BRIEF OF 54 DISTINGUISHED INDUSTRIAL DESIGN PROFESSIONALS IN SUPPORT OF AFFIRMANCE ______
Rachel Wainer Apter Mark S. Davies Will Melehani Katherine M. Kopp ORRICK, HERRINGTON ORRICK, HERRINGTON & SUTCLIFFE LLP & SUTCLIFFE LLP 51 West 52nd Street 1152 15th Street, NW New York, NY 10019 Washington, DC 20005 (212) 506-5000 (202) 339-8400 Case: 14-1335 CASE PARTICIPANTS ONLY Document: 105 Page: 2 Filed: 08/04/2014
CERTIFICATE OF INTEREST
Pursuant to Federal Circuit Rules 29(a) and 47.4, counsel for
Amici Curiae certifies that:
1. The full names of every party or amicus represented in the
case by me are:
54 Distinguished Industrial Design Professionals in Support of Affirmance (See Attachment to Certificate of Interest).
2. The name of the real party in interest (if the party named in
the caption is not the real party in interest) represented by me is:
Not Applicable
3. All parent corporations and any publicly held companies
that own 10 percent or more of stock of any party or amicus curiae
represented by me are:
Not Applicable
4. The names of all law firms and the partners or associates
that appeared for a party or amicus now represented by me in the trial
court or are expected to appear in this Court are:
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ORRICK, HERRINGTON & SUTCLIFFE LLP:
Mark S. Davies Rachel Wainer Apter Katherine M. Kopp Will Melehani
Date: August 4, 2014 By: /s/ Mark S. Davies Mark S. Davies Orrick, Herrington & Sutcliffe LLP 1152 15th Street, NW Washington, DC 20005 Telephone: (202) 339-8400 Fax: (202) 339-8500 Email: [email protected]
Attorney for Amici Curiae
ii Case: 14-1335 CASE PARTICIPANTS ONLY Document: 105 Page: 4 Filed: 08/04/2014
ATTACHMENT TO CERTIFICATE OF INTEREST
54 Distinguished Industrial Design Professionals in Support of Affirmance* **
1. Charles L. Mauro CHFP, IDSA, HFES President & Founder, MauroNewMedia Chairman, IDSA Design Protection Section
2. James Douglas Alsup, Jr. IDSA President/Principal, Alsup Watson Associates, Inc.
3. Charles Austen Angell CEO, Modern Edge
4. Daniel W. Ashcraft Chief Design Officer & CEO, Ashcraft Design
5. Joseph M. Ballay Principal & CAO, MAYA Design, Inc.
6. Alex Bally, FIDSA Partner, Nexxspan Healthcare LLC
7. Michelle S. Berryman, FIDSA Director, Experience Design Servs., THINK Interactive Former President, IDSA Chair Emeritus, IDSA
* Institutions are listed for affiliation purposes only. All signato- ries are participating in their individual capacity and not on behalf of their institutions. ** Emily Fisher (Design Research Associate) at MauroNewMedia also contributed reference research to this brief.
iii Case: 14-1335 CASE PARTICIPANTS ONLY Document: 105 Page: 5 Filed: 08/04/2014
8. Eric Beyer, IDSA Partner, Copesetic Inc. Designer/Account Manager, Pulos Design Assocs. Former IDSA Board Member, Section VP
9. Dr. Robert Ian Blaich, FIDSA President, Blaich Assocs., Design Mgmt. Consultants Fellow, Royal Society of Arts and Industry-U.K. Former President, Int’l Council Soc’y of Indus. Designers Former Vice President Corporate Design and Commc’ns, Herman Miller Inc. Former Senior Managing Director of Design, Royal Philips Elecs.
10. Gordon Paul Bruce, IDSA Indus. Design Consultant, Gordon Bruce Design LLC
11. Robert Brunner Founder/Partner, Ammunition LLC
12. William Bullock, FIDSA Indus. Designer
13. Bruce Claxton, FIDSA Professor, Design Mgmt., Savannah College of Art and Design Regional Advisor, ICSID Board of Directors, China Bridge Int’l Former President, IDSA
14. Del Coates Prof. Emeritus of Indus. Design, San Jose State Univ. Former Chair of Indus. Design, College for Creative Studies Former Research Designer, Ford's Advanced Vehicle Concepts Dept. Former Project Leader, Herman Miller Research Div. Former President, Michigan Chapter IDSA Co-Founder,Texas Chapter IDSA
15. Robert J. Cohn, IDSA President, Product Solutions Inc.
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16. James Couch VP Client Servs., Lextant
17. George Russell Daniels, L/IDSA CEO, Daniels Development Grp., LLC
18. Mark Dziersk Managing Director, LUNAR Former President, IDSA
19. John Edson President, LUNAR
20. Gerard Furbershaw Co-Founder & VP of Licensing and Investments, LUNAR
21. Carroll Gantz, FIDSA President, Carroll Gantz Design Former President, IDSA Chairman Emeritus, IDSA Recipient, IDSA Personal Recognition Award Design Former Director of Design, Black and Decker U.S. Inc. Former Manager, Design Dept., The Hoover Co.
22. John Leavitt Gard, L/IDSA Product Design Director, Design Consultants
23. Michael Garten, IDSA Project Mgmt. Grp. Manager, Teague
24. Donald M. Genaro Retired Senior Partner, Henry Dreyfuss Assocs.
25. Betsy Goodrich, FIDSA Co-Founder & VP Design, MANTA Product Development Inc.
26. Stephen G. Hauser FIDSA Consultant/Founder, Hauser, Inc.
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27. James J. Lesko, L/IDSA VP Design and Mfg., IKN
28. Scott David Mason, IDSA Owner, Scott Mason Design Mid-Atlantic Chapter Vice Chair, IDSA
29. Patricia Moore, Ph.D President, MooreDesign Assocs. LLC
30. Louis Nelson, IDSA, AIGA, SEGD President & Founder, The Office of Louis Nelson
31. Christopher J. Parke, IDSA Sr. Industrial Designer /Engineer
32. Nancy Perkins, FIDSA CEO, Dallas Lighthouse for the Blind, Inc.
33. Gordon Perry, IDSA Gordon Randall Perry Design
34. Samuel B. Petre, IDSA Senior Indus. Designer, bb7
35. Dale Raymond, IDSA, HFES Principal, Design-Lift, LLC
36. Raymond W. Riley, IDSA Exec. Creative Director, Device Design Grp., Microsoft Corp.
37. Brian Roderman, FIDSA President & Chief Innovation Officer, IN2 Innovation
38. Bryce G. Rutter, Ph.D. Founder & CEO, Metaphase Design Group, Inc.
39. Andrew Serbinski, IDSA President, Machineart Indus. Design
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40. RitaSue Siegel, IDSA, AIGA, DMI Founder & President, RitaSue Siegel Resources
41. Paul Specht, FIDSA President, PBS Design, Inc.
42. Budd Steinhilber, FIDSA Design Consultant
43. John V. Stram, L/IDSA
44. Kerstin Nelsen Strom, IDSA Design Director, Strom Studios Section Chair, IDSA Ecodesign Section
45. Mathieu Turpault, IDSA Partner & Director of Design, Bresslergroup
46. Gary van Deursen L/IDSA Consultant/Founder, Van Deursen LLC Former Corp. VP, The Stanley Works Former Corp. Sr. VP, Coleman Former Corp. Global VP, Black & Decker
47. Frank von Holzhausen President, GROUP4
48. Sohrab Vossoughi President, Ziba Design, Inc.
49. Arnold Wasserman Partner, Collective Invention Co-Founder & Chairman, The Idea Factory Former Director of Design, Raymond Loewy Co. Former Director, Corporate Design & Human Factors, NCR Corp. Former Director, Corporate Design Strategy, Xerox Corp Former Fellow for Design Strategy, IDEO
50. Allan E. Weaver Industrial designer, retired vii Case: 14-1335 CASE PARTICIPANTS ONLY Document: 105 Page: 9 Filed: 08/04/2014
51. Edmund A. Weaver, L/IDSA Retired Assoc. Tech. Principal, Kraft Foods
52. Robert Welsh, IDSA VP Indus. Design & Brand Mktg., DEWALT Power Tools
53. Stephen B. Wilcox, Ph.D., FIDSA Principal, Design Science
54. Angela Yeh, IDSA President & CEO, Yeh IDeology
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES...... x INTERESTS OF AMICI CURIAE ...... 1 ARGUMENT ...... 5 I. THE VISUAL DESIGN OF A SOPHISTICATED AND COMPLEX TECHNOLOGICAL PRODUCT BECOMES THE PRODUCT ITSELF...... 5 A. The Founders of Industrial Design Discovered That Visual Design Drives Sales...... 6 B. Visual Design Sells Because it Conveys the Function, Origin, and Overall Experience of Using a Product...... 15 1. The design of a product conveys the function of the product...... 16 2. The design of a product conveys the origin of the product...... 17 3. The design of a product conveys the overall experience of using the product...... 19 C. Visual Design Sells Complex Consumer Technology...... 22 II. ANYONE WHO COPIES A PATENTED DESIGN “SHALL BE LIABLE TO THE OWNER TO THE EXTENT OF HIS TOTAL PROFIT”...... 27 CONCLUSION ...... 35
ix Case: 14-1335 CASE PARTICIPANTS ONLY Document: 105 Page: 11 Filed: 08/04/2014
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Catalina Lighting v. Lamps Plus, 295 F.3d 1277 (Fed. Cir. 2002) ...... 35
Dobson v. Dornan, 118 U.S. 10 (1886)...... 32
Dobson v. Hartford Carpet Co., 114 U.S. 439 (1885)...... 32
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc) ...... 28
Gorham Co. v. White, 81 U.S. 511 (1872)...... 28, 35
LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2013) ...... 33
Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203 (1942)...... 34
Nike, Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1347 (Fed. Cir. 1998) ...... 32, 33
Sheldon v. Metro-Goldwyn Picture Corp., 309 U.S. 390 (1940)...... 33, 34
Tamko Roofing Prods., Inc. v. Ideal Roofing Co., Ltd., 282 F.3d 23 (1st Cir. 2002) ...... 34
FEDERAL STATUTES
17 U.S.C. §504(b)...... 34
35 U.S.C. §171 ...... 2, 28
35 U.S.C. §289 ...... 2, 29
x Case: 14-1335 CASE PARTICIPANTS ONLY Document: 105 Page: 12 Filed: 08/04/2014
Act of Feb. 4, 1887, Ch. 105, §1, 24 Stat. 387...... 32
Act of Aug. 1, 1946, Ch. 726, 60 Stat. 778 ...... 33
LEGISLATIVE MATERIALS
H.R. Rep. No. 1966 (1886), reprinted in 18 Cong. Rec. 834 (1887)...... 4, 31, 32
OTHER AUTHORITIES
David A. Aaker, Building Strong Brands (1996) ...... 18, 19
Peter H. Bloch, Seeking the Ideal Form: Product Design and Consumer Response, J. of Marketing, Jul. 1995 ...... 16, 17, 18
John R. Bryson, et al., Design Workshops of the World: The Production and Integration of Industrial Design Expertise into the Product Development and Manufacturing Process in Norway and the United Kingdom (Inst. for Research in Econ. and Bus. Admin. Working Paper No. 53, 2004), available at http://tinyurl.com/nofybck ...... 9
Daniela Büchler, How Different Is Different? Visual Perception of the Designed Object (2011)...... 17
Donald S. Chisum, Chisum On Patents: A Treatise On The Law Of Patentability, Validity And Infringement § 20.01 (2009)...... 33
Del Coates, Watches Tell More than Time: Product Design, Information, and the Quest for Elegance (2003) ...... 17
Thomas F. Cotter, Reining in Remedies in Patent Litigation: Three (Increasingly Immodest) Proposals, 30 Santa Clara High Tech. L. J. 1 (2013) ...... 30
Nathan Crilly et al., Seeing Things: Consumer Response to the Visual Domain in Product Design, 25 Design Studies 547 (2004)...... passim
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Dave Evans, The Internet of Things: How the Next Evolution of the Internet is Changing Everything (Cisco IBSG 2011), available at http://tinyurl.com/88uhsx3...... 25, 26
Mark Fischetti, Patent Crossroads: Countries and Companies Scramble to Gain a Competitive Edge, Sci. Am., Jul. 2014...... 14, 15
David Gartman, Auto-Opium: A Social History of American Automobile Design (Routledge 1994)...... 10, 11, 12
Siegfried Giedion, Mechanization Takes Command: A Contribution To Anonymous History (1948) ...... 6
Kathryn B. Hiesinger & George H. Marcus, Design Since 1945 (1983)...... 8
Mark A Lemley, A Rational System of Design Patent Remedies, 17 Stan. Tech. L. Rev. 219 (2013)...... 30
Raymond Loewy, Industrial Design: Yesterday, To-Day and Tomorrow? Address Before the Meeting of the Society and the Faculty of Royal Designers for Industry (Oct. 9, 1980) in J. of the Royal Society of Arts, Mar. 1981, available at http://tinyurl.com/k82286s...... 9
Ian MacKenzie et al., How Retailers Can Keep up with Consumers, McKinsey & Co. (Oct. 2013), http://tinyurl.com/q9qq4re...... 25
Charles L. Mauro, User-Centered Design in the New World of Complex Design Problems, Innovations (Winter 2012), available at http://tinyurl.com/mj6ugdw...... 25, 26
Bonnie Nichols, National Endowment for the Arts Research Report No. 56, Valuing the Art of Industrial Design, A Profile of the Sector and Its Importance to Manufacturing, Technology and Innovation (Aug. 2013)...... 14
Donald A. Norman, Emotional Design: Why We Love (or Hate) Everyday Things (2004)...... 19
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Stephen E. Palmer, Vision Science, Photons to Phenomenology (1999) ...... 15, 16
Arthur J. Pulos, American Design Ethic: A History of Industrial Design to 1940 (1983)...... 5, 6, 7, 10
Quarterly Retail E-Commerce Sales 1st Quarter 2014, U.S. Census Bureau News, (May 15, 2014, 10:00 AM), http://tinyurl.com/nfcfkv8...... 25
Jeneanne Rae, What Is the Real Value of Design? 24 Design Management Review 30, Winter 2013 ...... 13, 14
Violina P. Rindova & Antoaneta P. Petkova, When Is a New Thing a Good Thing? Technological Change, Product Form Design, and Perceptions of Value for Product Innovations, 2006 Design Research Soc’y, Int’l Conference in Lisbon (IADE), Paper 0311, available at http://tinyurl.com/ljfepdv...... 20, 27
Shaun Smith & Joe Wheeler, Managing the Customer Experience: Turning Customers into Advocates (spec. ed., Pearson Custom Publ’g, 2002)...... 18, 19, 20
Rob Tannen, How to Protect UI with Design Patents, Accelerator (May 8, 2013), http://tinyurl.com/o8h9ppu ...... 28
Ford. H. Tarantous, Big Improvement in Comfort of 1925 Cars, N.Y. Times, Jan. 4, 1925...... 12
U.S. Patent and Trademark Office, U.S. Patent Statistics Chart, Calendar Years 1963-2013, http://www.uspto.gov/ web/offices/ac/ido/oeip/taf/us_stat.htm (last modified Jul. 24, 2013)...... 28
Visualizations Make Big Data Meaningful: New Techniques Are Designed to Translate Invisible Numbers Into Visible Images, Comm. of the ACM, June 2014, available at http://tinyurl.com/oz2y8un ...... 14
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Cooper C. Woodring, Foreword to Darius C. Gambino & William L. Bartow, Trade Dress, Evolution, Strategy and Practice (2013) ...... 12, 13
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INTERESTS OF AMICI CURIAE
Amici curiae are distinguished industrial design professionals who
work in high-profile consulting firms and leading high-technology
corporations across the United States. We have many years of
experience providing product-design services to leading U.S. and
international corporations, nonprofit organizations, and government
entities including American Airlines, AT&T, Citibank, Coca-Cola, Ford,
General Electric, General Motors, Goldman Sachs, The Harvard
Endowment, Herman Miller, Hewlett Packard, IBM, Knoll, Kodak,
Lenovo, LG, Mobil Oil, Motorola, the New York Stock Exchange, NASA,
Nike, Pfizer, Polaroid, Porsche, the Salt Lake City Public Library,
Whirlpool, and Xerox.
Amici have served as President and Chairman of the Board of the
Industrial Designers Society of America. We have lectured at leading
graduate programs, including MIT Sloan School of Management,
Stanford University, Parsons School of Design, the University of
Pennsylvania, and at leading law conferences on design patents,
including the 2013 Stanford Law School Design Patent Conference.
Collectively, we have written and contributed to hundreds of leading Case: 14-1335 CASE PARTICIPANTS ONLY Document: 105 Page: 17 Filed: 08/04/2014
business and news publications, including Business Week, The New
York Times, and The Wall Street Journal.
We all share a strong professional interest in seeing that design
patent law continues to protect investments in product design.
Congress has provided that “[w]hoever invents any new, original and
ornamental design for an article of manufacture may obtain a patent
therefor.” 35 U.S.C. §171. And one who infringes a design patent “shall
be liable to the owner to the extent of his total profit.” 35 U.S.C. §289.
We have based our professional lives on the assumption that designs
are patentable and worth enforcing when infringed. Indeed,
collectively, we are named inventor on hundreds of U.S. design patents.
Amici have no personal interest in the outcome of this dispute
between Apple Inc. and Samsung Electronics. We have consulted for
both parties. Notably and appropriately, both of these leading
technology companies own numerous design patents. This case
happens to involve three of Apple’s design patents (see Apple Br. 7-9)1
covering the iPhone’s front face (U.S. Design Patent No. 618,677),
1 “Apple Br._” refers to the identified page(s) of Apple’s July 28, 2014 principal brief.
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distinctive appearance (U.S. Design Patent No. 593,087), and graphical
user interface (U.S. Design Patent No. 604,305). But Samsung also
owns design patents on various devices, such as SmartTVs or “media
display devices,” that, like the iPhone, are sophisticated and complex
technological products. See, e.g., U. S. Design Patent No. 658,612. The
fundamental principles of visual design set forth below are agnostic as
to who brings forth a new design to the world.2
The undersigned were prompted to submit this brief in significant
part to respond to an amicus brief submitted by a set of law professors
with unspecified design qualifications. The law professors’ brief takes
issue with the view that design “drives the sale of the product.” See
Law Professors’ Br. 7-11.3 The law professors suggest that what
matters more is the “function” of the product, id. at 10, and insist that
protecting design patents by requiring an infringer to disgorge all
profits “[m]akes [n]o [s]ense in the [m]odern [w]orld.” Id. at 7. We
2 No one other than the undersigned wrote or funded any portion of this brief. Both parties have consented to the filing of this brief. 3 “Law Professors’ Br._” refers to the Law Professors’ June 4, 2014 Amici Curiae Brief.
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submit this brief to provide the Court with the relevant historical and
scientific material that rebuts each proposition.
First, design drives sales of products. Since the emergence of the
field of modern Industrial Design in the 1920s and ’30s, product design
is the way to sell technological innovation and manufacturing know-
how. The visual design of a product comes to signify to the consumer
the underlying function, origin, and overall user experience associated
with that product.
Second, the most sensible policy in these circumstances remains
the one Congress adopted a long time ago: Infringement of a design
patent should result in award of the infringer’s total profits to the
designer. As Congress realized in 1887, “it is the design that sells the
article, and so that makes it possible to realize any profit at all.”
H.R. Rep. No. 1966 (1886), reprinted in 18 Cong. Rec. 834 (1887).
Design patents protect from misappropriation not only the overall
visual design of products, but the underlying attributes attached to the
design of the product and embodied in the mind of the consumer by the
product’s visual appearance. When an infringer copies the design of a
successful product, it captures the consumer’s understanding of what
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the product does and what the product means. Correctly understood,
the total profit earned from the infringing product is therefore the
fitting remedy for design patent infringement: without the infringing
design, there would be no sales and no profits.
In this case, the jury found that Samsung unlawfully copied the
iPhone’s patented visual design. The undersigned take no position on
whether that jury finding was correct. But assuming so, the jury
properly awarded to Apple all of Samsung’s profits from selling the
infringing devices. Any other result would reflect a deep
misunderstanding of design.
ARGUMENT
I. THE VISUAL DESIGN OF A SOPHISTICATED AND COMPLEX TECHNOLOGICAL PRODUCT BECOMES THE PRODUCT ITSELF
Prior to the creation of the field of modern Industrial Design,
American manufacturers produced complex commercial and consumer
products without much regard to how the products looked. To the
extent visual design was considered at all, it was “relegated to legs,
support brackets, and hardware.” Arthur J. Pulos, American Design
Ethic: A History of Industrial Design to 1940 279 (1983). Most
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consumers, in turn, made purchasing decisions based on price and
availability. The American public “was not concerned with such lofty
notions as the relationship of function to form or the inherent aesthetic
of manufactured objects—it was simply overwhelmed by the flood of
affordable machine-made products that promised to improve material
existence.” Id. at 161. Henry Ford, for example, was noted for his lack
of interest in design, yet his Model T automobile sold more than 15
million units. Id. at 256.
This neglect of visual design rested on a misunderstanding of
human behavior. In the 1920s and ’30s, manufacturers started to
recognize “that appearance does count,” and industrial designers
became integral to shaping mass-produced objects. Siegfried Giedion,
Mechanization Takes Command: A Contribution To Anonymous History
608-10 (1948). This belated attention to design led to massive profits, a
trend that has accelerated in the age of complex multifunctional
technological products.
A. The Founders of Industrial Design Discovered that Visual Design Drives Sales
The three primary founders of Industrial Design were Raymond
Loewy, Walter Dorwin Teague, and Henry Dreyfuss. In different ways
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and for different companies, these three created attractive and
compelling products that were pleasing to the eye and readily
identifiable in the marketplace. By focusing on how products looked,
they gave life and meaning to the underlying features and functions of
the machines.
Walter Dorwin Teague designed many of Kodak’s most famous
cameras. He was lauded for his ability to emphasize the beauty
in “a thing of primarily utilitarian character.” Pulos, supra, at
285 (internal quotation marks omitted).
Henry Dreyfuss’s iconic product designs included the Hoover
vacuum cleaner, Western Electric telephone, and John Deere
tractor. Dreyfuss was recognized as the “conscience of the
industrial design profession.” Id. at 289-91. He emphasized
utility and usability, a concern for the consumer, and a focus on
fitting products to people rather than vice versa. Id. at 289.
Raymond Loewy’s designs included Pennsylvania Railroad
locomotives and the Coca-Cola bottle. His work was so far
reaching that by the 1940s and ’50s, an estimated three-
quarters of Americans came into contact with one of Loewy’s
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designs each day. Kathryn B. Hiesinger & George H. Marcus,
Design Since 1945 220 (1983).
A classic example of early industrial design was Loewy’s work on
the Gestetner duplicating machine. The original machine consisted of
exposed and chaotic-looking metals and gears sitting on four protruding
tubes:
Loewy was given three days to redesign it. “[D]etect[ing] the inherent
hazards of the four protruding legs in a busy office,” Loewy covered the
machine with Plasticine clay and encased it in a wooden cabinet to hide
the mechanisms:
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John R. Bryson, et al., Design Workshops of the World: The Production
and Integration of Industrial Design Expertise into the Product
Development and Manufacturing Process in Norway and the United
Kingdom (Inst. for Research in Econ. and Bus. Admin. Working Paper
No. 53, 2004), available at http://tinyurl.com/nofybck.
Loewy’s aesthetic changes were a huge success: sales of the newly
attractive machine soared, Gestetner built three more factories to meet
the increased demand, and the company kept the same model for thirty
years. Raymond Loewy, Industrial Design: Yesterday, To-Day and
Tomorrow? Address Before the Meeting of the Society and the Faculty
of Royal Designers for Industry (Oct. 9, 1980) in J. of the Royal Society
of Arts, Mar. 1981, at 200, 203, available at http://tinyurl.com/k82286s.
Similarly, in 1934, Sears hired Loewy to redesign its refrigerator line.
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The resulting model, the Coldspot, saw its sales grow “from 15,000 to
275,000 units within five years,” making Sears a major supplier of
household appliances. Pulos, supra, at 358.
The competition between Ford and General Motors during the
1920s also illustrates the new focus on visual design. At the turn of the
twentieth century, “that the automobile worked at all and could be
operated with reasonable reliability was sufficient.” Id. at 242-43.
Descriptions of automobiles ranged from “generally untidy” to
“positively ugly.” David Gartman, Auto-Opium: A Social History of
American Automobile Design 23, 26 (Routledge 1994). The Model T was
typical:
Steve Simm
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Yet, Henry Ford initially saw no reason to enhance his design, satisfied
by the 3:1 sales gap between Ford and General Motors.
Then, in 1926, General Motors introduced a bold and colorful
Chevrolet:
Sales of the Chevrolet quickly surpassed sales of the black Model T.
Shortly thereafter, Ford released its first stylized car, the Model A.
Gartman, supra, at 77.
The recognition of the importance of visual design led to huge U.S.
economic growth. Without changing the underlying technology,
engineering or functionality, a single manufacturer could suddenly
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create a vast number of different models simply by changing their
shape, style and appearance. General Motors, for example, maintained
five separate brands (Chevrolet, Pontiac, Oldsmobile, Buick, and
Cadillac), whose models shared not only mechanical parts, like
transmissions and brakes, but also the structural foundations of the
car’s body, called body shells. Id. at 76. Yet each model looked unique
due to the addition of aesthetic features (e.g., fenders, headlights,
taillights, and trim) and different colors. Id. at 76-81. Sales of these
different models to “people ever thirsty for something new,” propelled
GM sales past Ford. H. Tarantous, Big Improvement in Comfort of 1925
Cars, N.Y. Times, Jan. 4, 1925 at A2; Gartman, supra, at 92. Other
major manufacturers soon caught on, establishing their own versions of
General Motors’ “styling section.” Gartman, supra, at 92-93.
In short, thanks to the efforts and success of Loewy, Teague,
Dreyfuss and others, American manufacturers recognized that how a
product looked, in terms of its overall shape and style, mattered to
consumers. Good design became “no longer a luxury or a novelty” but a
“necessity … considered by most nations to be a competitive weapon
and a national resource.” Cooper C. Woodring, Foreword to Darius C.
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Gambino & William L. Bartow, Trade Dress, Evolution, Strategy and
Practice, at xvii, xix (2013). In 2010, the United States Postal Service
produced a set of collectable stamps commemorating the founders of
Industrial Design. These stamps, shown below, reflect seminal
products from the dawn of Industrial Design as a formal professional
discipline.
Frederick Herten Ahead USA GJ
ro •L Peter Muilv•Munk ItoymorW LdeVry V7 USA USA MFIMMT I nervy Dreyiu. USA 3MM
Wald' Ddrie...ri L•.rdeu. USA
Noyes USA
'Russel Wrigihe USA
Today, “it is clear that giving design a seat at the table adds
significant value that helps differentiate and elevate companies beyond
the norm and helps to deliver tangible business results.” Jeneanne Rae,
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What Is the Real Value of Design? 24 Design Management Review,
Winter 2013 at 30, 37. In fact, America’s top fifteen “design conscious
companies” outperform their peer group by 228% on a market asset
value basis. Id. at 33. Similarly, the role of the designer has been
elevated to a powerful position in modern companies. There are over
40,000 industrial designers in the United States, and “many Silicon
Valley startups [now] have three co-founders: a technologist, a business
person, and an artist.” See Bonnie Nichols, National Endowment for
the Arts Research Report No. 56, Valuing the Art of Industrial Design:
A Profile of the Sector and Its Importance to Manufacturing, Technology
and Innovation 8 (Aug. 2013); Visualizations Make Big Data
Meaningful: New Techniques Are Designed to Translate Invisible
Numbers Into Visible Images, Comm. of the ACM, June 2014, at 19, 21,
available at http://tinyurl.com/oz2y8un.
Moreover, “[t]he visual appearance of products is a critical
determinant of consumer response and product success.” Nathan Crilly
et al., Seeing Things: Consumer Response to the Visual Domain in
Product Design, 25 Design Studies 547, 547 (2004); see also Mark
Fischetti, Patent Crossroads: Countries and Companies Scramble to
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Gain a Competitive Edge, Sci. Am., Jul. 2014 at 96, 96 (“the success of
any individual product may increasingly depend on its design.”).
B. Visual Design Sells Because it Conveys the Function, Origin, and Overall Experience of Using a Product
Visual design drives sales because vision has powerful effects on
the human mind. New visual designs for products not only give
products a new look or a competitive edge, but can actually become the
product in the mind of the consumer. This is because how a product
looks conveys how it operates, where it comes from, and what it means.
See, e.g., Crilly, supra, at 547 (“Judgments are often made on the
elegance, functionality and social significance of products based largely
on visual information.”).
Cognitive scientists explain how this phenomenon works.
Scientists have divided visual processing into four stages; of particular
relevance here is the fourth “category-based stage.”4 During the
4 The first three stages are: (1) the image-based stage (edges, lines, and line endings are processed); (2) the surface-based stage (prop- erties of surfaces in the external world are used to inform the image); and (3) the object-based stage (the processing system makes inferences about what might not be seen in the image, such as the hollow inside of a box). Stephen E. Palmer, Vision Science, Photons to Phenomenology 85-92 (1999).
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“category-based stage,” the image conveys to a consumer the function,
origin, and overall experience of using a product.
1. The design of a product conveys the function of the product.
We begin to manipulate our external world by visually identifying
objects and then categorizing those objects based on how they look.
Palmer, supra, at 85-92. When we see a product, our eyes take in an
image that is projected onto an array of receptors in our retinas. Id. at
86. In the category-based stage of visual processing, the visual system
recovers “the functional properties of objects: what they afford the
organism, given its current beliefs, desires, goals, and motives.” Id. at
91. The visual image of a product is the first stimulus a consumer uses
to identify and build a mental model of the product’s functions; it elicits
“beliefs about product attributes and performance.” Peter H. Bloch,
Seeking the Ideal Form: Product Design and Consumer Response, J. of
Marketing, Jul. 1995, at 16, 20.
The human information processing system does not separate the
physical appearance of an object from the related functions of that
object. A consumer’s visual perception of an object is “constructed by
the knowledge [the consumer] has of [that object]. This visual
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perception is therefore a filtered visual interpretation that is made up of
only the physical features that the knowledge filter has allowed to seep
through to the perceiver.” Daniela Büchler, How Different Is Different?
Visual Perception of the Designed Object 84-85 (2011) (emphasis added).
Thus, when a consumer encounters a known product, the
consumer identifies the look of the product with the underlying
functional features. “Design subsumes all the other factors by
determining the character and worth of each and every one of a
product’s attributes.” Del Coates, Watches Tell More than Time:
Product Design, Information, and the Quest for Elegance 15 (2003).
Design is the pathway to function.
2. The design of a product conveys the origin of the product.
During the fourth phase of visual processing, a product’s visual
appearance also comes to signify where the product comes from. This is
so because “we organize our understanding of the world in terms of …
relationships between distinct classes of objects.” Büchler, supra, at
108. Consumers attempt to understand products by placing them in
existing categories based on perceived similarities. Bloch, supra, at 20.
Industrial designers seek to capitalize on the human information
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processing system’s desire to make connections between products by
using similar attributes across products to define an entire brand. This
categorization, or a consumer’s ability to understand differences among
products while still connecting them based on knowledge and
experience, is the essence of modern branding.
For example, “[p]roduct form may create or influence beliefs
pertaining to such characteristics as durability, dollar value, technical
sophistication, ease of use, sex role appropriateness, and prestige.
Designers often choose particular form elements to proactively
encourage the creation of desirable beliefs.” Bloch, supra, at 19. In
aggregate, these attributes are what create and define a brand. The
common cliché that “[p]roducts are built in factories, brands are built in
the mind” thus holds true. Shaun Smith & Joe Wheeler, Managing the
Customer Experience: Turning Customers into Advocates 7 (spec. ed.,
Pearson Custom Publ’g, 2002).
Once visual design and functional features create the brand, the
brand can then become “a vehicle for representing and cueing functional
benefits and brand attributes.” David A. Aaker, Building Strong
Brands 168 (1996). For example, a functional feature of a Harley-
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Davidson motorcycle is that the motorcycle is powerful, but it is Harley-
Davidson’s “rugged, macho, freedom-seeking” brand personality that
gives a backbone to this product attribute and convinces the customer of
its value. Id.
3. The design of a product conveys the overall experience of using the product.
Products can deliver a visual design that conveys to the consumer
attributes that go beyond the underlying functions and the brand.
Instead, the visual design of a product can convey higher level
attributes of the total user experience and the modern life-style benefits
of the product. The visual design of a product can thus come to
represent the consumer’s perception of the total user experience at the
time of viewing.
The total user experience “takes into account customers’ rational
and emotional expectations.” Smith, supra, at 56. This is important
because positive emotions sell. It is not surprising that “attractive
things make people feel good.” Donald A. Norman, Emotional Design:
Why We Love (or Hate) Everyday Things 19 (2004). But research
confirms that emotional connections to products and brands are “among
the biggest drivers of repeat business.” Smith, supra, at 56. Indeed,
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“[c]onsumer preferences and motivation are far less influenced by the
functional attributes of products and services than the subconscious
sensory and emotional elements derived by the total experience.” Id.;
see also Crilly, supra, at §6.4, p. 565 (“[T]he symbolic meaning
associated with products often has the potential to dominate the
aesthetic and semantic aspects of cognitive response.”); Violina P.
Rindova & Antoaneta P. Petkova, When Is a New Thing a Good Thing?
Technological Change, Product Form Design, and Perceptions of Value
for Product Innovations, 2006 Design Research Soc’y, Int’l Conference in
Lisbon (IADE), Paper 0311, available at http://tinyurl.com/ljfepdv
(“[C]ustomers experiencing positive emotions may feel more predisposed
to try new things and may perceive them as having higher value… .”).
It is the design of a successful product that embodies the consumer’s
understanding of and desire to own and interact with that product.
***
Here is a diagram that illustrates the science explaining why
visual design sells products:
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How visual design sells Cognitive processing of the visual desrgn
Retinal image
V
Image-based processing
V
Surface-based processing Habituation / Experience
Object-based processing
Product category- based processing Object Function
Object Origin
V Overall experience/ /11•11•1, emotional connection
Copyright MauroNewMedia, inc. 2014
A consumer sees the product’s “image,” the image is then processed
through the various stages, and, at the category-based stage, the
consumer recognizes the function, origin, and emotion of using the
product.
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C. Visual Design Sells Complex Consumer Technology
Just like Loewy’s Gestetner duplicating machine and GM’s Chevy,
the visual design of today’s smartphone uses the human processing of
visual images to convey to consumers the function, origin, and overall
experience of using the product. Modern smartphones include
thousands of features covering email, camera, browser, music player,
text messaging, contacts, calendar, databases, and options for millions
of customized applications. Each of these features contributes to the
overall functioning of the product and to the total user experience. But
no single feature defines the phone in the mind and eye of the
consumer.
Instead, in an increasingly complex marketplace where product
feature density is expanding exponentially, and where basic
functionality is assumed, the visual design of a product is the only way
to represent to the consumer the underlying technical innovations and
manufacturing know-how of the product itself. See Crilly, supra, at
§ 9.1, p. 574 (“In mature markets, where the functionality and
performance of products are often taken for granted, attention is
increasingly focused on the visual characteristics of products. In such
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markets, attention to a product’s appearance promises the
manufacturer one of the highest returns on investment.” (internal
quotation marks omitted)).
The following images illustrate the point: