Do People Still Make Stuff?

Cooper Woodring has spent an impressive career as an industrial designer, and has played a critical role in the development of the IDSA. Yet his presentation today at the IDSA Mideast District Conference pointed out a major cross-generational problem that seems to plague both the IDSA and the industrial design profession - a left-over emphasis on form, a now dated view of design as stylist, and a rejection of the complexity of design for behavior and culture.

Cooper described his work as an expert witness in design patent litigation. He explained how major companies will hire him to participate in design cases, and he explained that the stakes are high (Cooper mentioned, specifically, a recent case that hit the infringer with a $50 million dollar ruling). In design cases, the "Gorham Ordinary Observer Test" is used to determine if a design is infringing on a patent. Only ornamental details are considered, and the test tries to understand if an "ordinary observer" would be confused or tricked into purchasing one item over another based on the decorative surface and holistic visual appeal of an artifact. Simplistically, an expert witness will prepare legal material that often compares photographs of a product in orthographic view to greyscale orthographic projections in a patent, and then will describe how one is similar to another.

Three main problems come to mind, pressing problems that point to the essence of design as a global and intellectual endeavour.

First, and most obvious, Cooper explained that industrial design patents can only be filed, and industrial design litigation can only occur, in regard to the ornamental and aesthetic elements of a product. This implies that the aesthetic can be separated from the functional, or from the emotional, or from the deeper cultural context of use; it belittles and rejects a comprehensive view of interaction, experience, emotional resonance, customer journey, or any of the other established and temporal qualities of an artifact, service or system.

Second, as Cooper described his work, it became clear that much of the litigation is against Asian companies; he described efforts that are made at the border, in cooperation with customs and trade officials, to destroy and negatively compensate offenders in China. This rejects the increasingly global view of design, and prescribes our intellectual property laws on cultures that have a long, deep and different view of what it means to create and to "own" things and ideas.

Finally, and most troubling, the additive of both of these problems is positioned in a public and precedent setting venue - a court room - that reinforces an out of date view of design as being culturally irrelevant and superficial, and encourages litigation over intellectualism or, dare I say it, innovation. As an example, Cooper described that Ford Motor Company often employs this type of design lawsuit to defend their work; yet clearly, given the state of this and other American car companies, the litigation is too little, too late, and it's obtuse to imagine that Ford's financial troubles are due to someone copying the aesthetic of the F150.

Cooper was kind enough to share his thoughts in an honest, straight-forward and deeply personal manner, and to this I thank him. Yet I'm concerned that the audience of mostly students takes away a view that design is, in fact, still relegated to "doing the plastics", and that it's acceptable for the legal community to view our work as a "pretty face" or "skin job". I'm also concerned that, as Cooper described, the expert-witness role in design litigation is increasing at a rapid pace. Companies that pursue this strategy are rejecting enormous opportunities for cultural relevance and massive, positive behavioral change; they perpetuate the view of "styling" as "intellectual property", which is demeaning both to the profession of law and to the profession of design.

There is a need to demand the protection of the work of our brain, and to claim ownership - with a degree of legal backing - on the intellectualism that supports this work. But it must be acknowledged that a pretty form can no longer be called "intellectual", and that we cannot force our view of aesthetic ownership on other cultures, and that the commoditization of form is fact. As a professional organization, the IDSA must move on and embrace issues of interaction design, behavioral change, and cultural shifts. It's the only way to remain relevant.

Jon Kolko