Google Patents Its Homepage

(MoneyWatch)  It seems that in 2006, Google applied for a design patent on its home page that was just granted this week. (Via Patently-O.) Apparently copyright wasn't enough protection and Google wants to have a lever to deter those who would come up with a Google-like front end. And the patent apparently references another design patent that the company got on how it presents search results. But there are some problems here.

First, here's a picture from the patent showing exactly what design Google is patenting as of the March 7, 2006 filing date:

And here's the results page design patent that Google filed for on March 26, 2004 and received in 2006:

Something that immediately comes to mind is that Google has been using variations on its homepage since long before it filed in 2004. Look at this variation from February 6, 2002 as shown in the Internet Archive Wayback Machine:

Pretty close, eh? Finally, this version appeared late in March 2004, around the date that Google filed the patent:

Here's what Prof. Dennis Crouch of the Patently-O blog has to say about design patents:

Design patents have severely limited scope, only cover ornamental designs rather than technological advances, and are very frequently found invalid when challenged in court. The USPTO has been granting design patent protection for screen shots and icons for many years. However, to my (limited) knowledge, none of those design patents have ever been enforced in court. As with most design patents, it appears that during prosecution, the PTO never issued a substantive rejection based on novelty or obviousness.

The dashed line items are not claimed as part of the design, so if someone used the same design, only with another logo at the top, it would still be considered an infringement. Another point Crouch makes is that this becomes yet one more hammer to use on another, piling on the protection, even if you might think "their claim to rights appears overreaching."

But there's something else interesting -- Google's copyright. One of the things you learn about copyright law is that while you automatically have copyright on creation of an image or some writing, it doesn't mean much if you haven't registered the copyright with the U.S. Copyright Office because you can't sue an infringer until you do.

Tthere's another catch as well: if you don't register copyright either within three months of first publication or before the infringement, then you have limitations on what you can regain from a suit, including legal fees. If you don't have that registration ahead of time, you will effectively be up the creek. And doing a quick search at the Copyright Office online catalog of registered works, Google, Inc. has only registered three copyrights in 2003, 2006, and 2008. In other words, the company has pretty much left its copyright protection out to pasture. And that might be why it went the design patent route. It does make me wonder whether some company or other will put up the $1,500 for a reexamination fee in an attempt to show that a) the general layout doesn't meet the "obviousness" standard and b) the company had already telegraphed the basic interface idea years before, providing its own prior art to potentially invalidate its patent.