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Patently obvious

Is patent law the next US export to the UK? And what role does intellectual property law play in architecture?

The field of architecture has seen very few legal actions concerning the intellectual property contained in the construction plans, the drawings and the concepts involved in architecture. Perhaps too few architects understand the scope of protection available to them, perhaps the cost and risks are perceived to be too great, or perhaps architects truly believe that imitation is the most sincere form of flattery.

Architecture could well tread the same path as other creative industries and aggressively protect creative and often innovative work. For an architectural firm, this creative work rests in the company portfolio, and recent developments in the US may herald a change in the way this portfolio is protected.

The ascendance of this aggressive form of protection applied to creative and innovative work could be facilitated by the use of intellectual property law. Intellectual property law regulates the creation, use, and exploitation of mental or creative labour and refers to the general area of law that encompasses copyright, patents, designs, and trademarks.

Architects creatively design buildings and subsequently feel that their rights have been abused when a similar building is produced.

The architect or planner has invested time and labour in solving the problem encountered in that particular project and may feel that some kind of ownership and/or reward is deserved. This is not always the case as certain intellectual property rights such as copyright can be avoided, thus allowing an economic 'free-ride' to be taken on the labour of another.

As an architect you cannot copy another architect's artistic work, such as a drawing. However, you can use ideas or concepts embodied in his/her plan and apply the concept and style to an original plan prepared by yourself, thus avoiding any copyright infringement.

Protest and survive

There are four main ways in which a building can be protected from copying:

Copyright. Architectural designs fall under the remit of the Copyright, Designs and Patents Act (CDPA) 1988. There is a specific subcategory for 'works of architecture'.

Registered designs. One of the limitations of registered designs in the field of architecture is that while distinct parts of a structure can be protected, a building constructed on site from plans is not an 'article' and thus non-protectable.

Unregistered Design Rights. A design right arises as soon as the design is recorded; it is basically the non-commonplace aspect of the shape of an article, and protection does not extend to methods or principles of construction.

Patents.

These provide a registered protection for new and original inventions. They are rarely found in the realm of architectural design in the UK, as they cannot be used to protect artistic works or other aesthetic creations. However, if an architect, in producing a design for a client, comes up with a new method or principle of construction it may be possible for that architect to apply for a patent to cover such a new method or principle.

Patents are one of the most commercially powerful forms of intellectual property protection, the patent application process demands that specific details of the patent be disclosed for analysis by the UK Patent Office. This makes a patent more easily enforceable and subsequently more valuable when taking action against an infringing party.

US and them On 19 July, 1999, the New York Times reported on a seemingly new area of law relating to building design in the US. It describes what might be the first patent for a building type, granted to two Houston architects, Mark I Kaufman and Donald J Meeks. The important difference from the idea of copyright is that the patents do not protect the specific plans (as a copyright would) but rather, the concepts behind the buildings.

Kaufman and Meeks have patented four architectural ideas: two for housing layouts (US Patents: 5,761,857 and 5,761,570), one for an apartment circulation pattern, and another allowing tenants to park on the same level as their apartments. These have been licensed to nearly a dozen developers.

The patents are not about aesthetics so much as the budget's bottom line. The patented configuration allows for eight houses per acre instead of the usual 3.5, and the circulation pattern allows for high-rise density in a woodframe building by eliminating the need for 'breeze ways'.

Copyright protects designs for specific buildings; patents protect ideas that can be adapted for multiple projects. By licensing patents, Kaufman hopes to create the 'McDonald's-isation' of affordable housing and anyone using the designs must pay his fee to use them.

Not surprisingly, Kaufman argues that his patent is deserved: 'In my opinion, 97 per cent of all architects are not creative, and three per cent are creative. We are among the three per cent What I foresee is that the three per cent of architects will create the products for the other 97 per cent, who will be marketing those products That will allow the creative architects to sit at home and do R&D, knowing that if they have a breakthrough, they're protected.'

Kaufman and Meeks have also been using the threat of patent enforcement to convince developers that they must use them as an architect. These methods may not be the most ethical but they certainly seem to be effective. This may prove to be problematic because as budget and legal restraints narrow the range of design options for houses and apartments, whoever patents first, may end up owning a disproportionate share of the limited number of available design solutions.

When the Memphis-based firm of Looney Ricks Kiss learned of Kaufman Meeks patents, it felt obliged to hire patent attorneys to ensure its designers did not unwittingly infringe on the patents. Jennifer Sammons, the in-house lawyer, said that, the attorneys 'helped us avoid doing things we normally would have done The patents are easy to evade once they are identified but we don't want to have to think about that every time we do a project.'

It seems fair to grant a patent if architects have truly devised something new, but what if they lay claim to designs they did not originate? 'We think those [patented] techniques have been in use for many years, ' says Joe Molinaro, director of the land development services for the National Association of Home Builders. This could cause a problem for the Kaufman Meeks patents, as it could compromise one of the essential criteria required for a patent to be granted.

Granting procedure

The following criteria have to be fulfilled to allow a patent to be granted over a building concept/invention.

This area is governed by the Patent Act, 1977, and the European Patent Convention:

The invention must be new. An invention is said to be new if it does not form part of the state of the art.

The state of the art is defined very broadly to include all matter that is available in the world before the priority date of the invention.

The invention must involve an inventive step. An invention is said to involve an inventive step if it is not obvious to the average person skilled in that particular art involved.

The invention must have an industrial application.

The patent application must also disclose the invention in a manner that is clear.

Not here yet

Architectural designs can be innovative and thus deserve the level of protection afforded by patents, however the applicability of patents may not stretch to all aspects of architecture. Patenting has a monetary cost and, after the patent has been granted, the owner must locate and deal with the infringing parties himself, as there is no governmental body policing this area. Patents will only be economically feasible in two situations. In the first situation, the building concept must have the significant possibility of reward to the inventor through the licensing to others. In the second situation, the protection provided by the patent must be strong enough to allow the designer to exploit his idea without others 'free-riding' on the concept and thus lessening its value.

The design and construction of large-scale housing projects could be especially susceptible to patent protection. Large-scale designs that are built by planners and architects all have the same standard problems to address. The best designs can be very valuable indeed and once a firm has designed a plan that works, it is likely to use the same plans on a different site. These types of plans have a high intrinsic value only if others can be prevented from copying the designs.

Patents have been used in the US to protect the labour involved in these types of designs.

Although there are patents in the UK that deal with construction, to date there do not seem to be any cases of Kaufman Meeks-type patents being granted in the UK, vigorously enforced and subsequently used as economic marketing tools. It would be unwise to first, dismiss the idea that similar patents may be granted and exploited by innovative UK architects and designers, and second, to forego all thought on what impact this kind of legal protection may have on future architectural practice.

Mark Van Hoorebeek researches architectural intellectual property law at the University of Sheffield (additional material by Abe Fineberg, Davidson Architects, Sheffield). For further information email 2marky@excite.com or tel 07870 735994

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