Intellectual Property and Usability Testing [signed]

26 Jul 2005 - 6:55pm
9 years ago
1 reply
470 reads
Bernie Monette
2005

--
Bernie Monette
InterActive Arts
Internet Presence Management
http://www.iaai.ca monette at iaai.ca 416 469 4337

> From: "Zobarich, Richard M." <rzobarich at shaw.ca>
> Date: Tue, 26 Jul 2005 18:34:16 -0500
> To: Todd Warfel <lists at toddwarfel.com>
> Cc: <discuss at interactiondesigners.com>
> Subject: Re: [ID Discuss] Intellectual Property and Usability Testing
>
> [Please voluntarily trim replies to include only relevant quoted material.]
>
> Todd Warfel wrote:
>
>> This is the part I'm struggling with. Perhaps I'm not clear on what
>> you're asking.
>>
>> Is the company stating that there's IP in the product you're testing,
>> or that there's IP in the method you're using to do the usability
>> testing? If the later, you're probably going to run into problems with
>> a little thing called "prior work." Unless you come up with an
>> entirely new method of usability testing.
>>
>> What am I missing?
>
> Perhaps I wasn't clear. An influential person is trying to assert the
> latter, in the interest of securing University "know how (to do
> usability testing)"; assuming the "know how" exists only in University
> Land. Others argue that there is no University know how to license,
> period. For example, I know how to conduct Usability Tests and I am not
> a University Researcher. Are you suggesting that if University
> Researchers have an "entirely" new way of doing usability tests, that
> they might be able to license the methodology as IP? Could you
> elaborate on what you mean by "an entirely new method of usability
> testing"?
>
> Also, could you elaborate on "prior work" and how that might correspond
> to IP?
>
> Thank again.
> Richard
Richard et.al.;
One of the things I am struggling with is: what are you testing?

Intellectual property usually only applies to something tangible: a process
(step by step) or a thing (Pokemon). "Know-how" seems intangible and would
usually be covered under a consulting" agreement: you get paid for using
your know how. The output of the "know how" now that would be a different
matter: your consulting agreement should have lots of words about who owns
the results.

So in broad strokes: you provide the item to be tested, we perform the
test: who owns the results? Do you share them? Does your client own them
exclusively? Or (more preferred) do they remain yours that you have licensed
to your client for their private review.

I am sure Nielsen has language in his contracts that prevents clients from
using his recommendations in advertising: Jakob says its lovely...4 out of 5
usability specialists say...

Cheers,

Bernie

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Comments

27 Jul 2005 - 5:24pm
Bernie Monette
2005

> Thanks again to all who responded.
>
> Todd Warfel wrote {
>
> This basically summarizes "prior-work." If the work already exists (e.g. card
> sorting), then you cannot obtain a patent for IP. However, if it's a new
> technique, method, product (e.g. card based classification), then you can
> obtain a patent for IP.
>
> }
>
> Ok.
>
> Donna Maurer wrote {
>
> There is *so* much material about usability testing that already exists that
> it would be reasonably rare to have IP on the technique.
>
> }
>
> I agree.
>
> Donna Maurer wrote {
>
> http://www.boxesandarrows.com//archives/card-based_classification_evaluation.p
> hp I would own the IP for this as I developed the technique and it is quite
> different to other usability methods.
>
> }
>
>
>

> Donna Maurer wrote {
>

> Bernie Monette wrote {
>
> So in broad strokes: you provide the item to be tested, we perform the test:
> who owns the results? Do you share them? Does your client own them
> exclusively? Or (more preferred) do they remain yours that you have licensed
> to your client for their private review.
>
> }
>
> Yes ... and contract agreements and nondisclosures will take care of the
> company vs. client IP. We wish to use Usability Testing as a means of
> establishing ground zero. Then we would like to steer clients towards
> innovative design solutions, among other things. However, we seem to be
> struggling over who owns the internal IP. Should the company as an entity own
> the IP? This makes kind of sense if the IP is a result of an equal
> collaboration between university researchers and non university researchers.
> However, I see complications similar to those I posed to Donna.
>
> <A hypothetical scenario>
>
> What if Donna had been developing her technique over the course of many years
> only to fine-tune her approach at Company X, with very minimal direction from
> others involved at Company X. Then perhaps Company X decides to claim
> ownership over the technique as IP licensed to clients. Should Donna not be
> entitled to the IP? What could Donna do to protect herself? Would she simply
> be bullied into submission? More importantly, does anyone care enough about
> Donna in the Trenches or is she simply an asset?
>
> <End of Hypothetical Scenario>
>
> Nick Ragousis wrote {
>
> I do hope that you are using this exercise as a motivator to look for, and
> structure a way to develop and capture, then capitalize on, such intellectual
> property.
>
> }
>
> Yes but I fear that I'm losing too much sleep over the matter.
>
> Nick Ragousis wrote {
>
> FIRST. Another way to ask the question on capture: How much will you invest in
> investigation and development of emerging ideas, and control of their use and
> dissemination?... In other words, If you want to harvest IP you'd better be
> serious about it, and being serious about it can have great effects on
> instigating such innovation, and on its use in your practice.
>
>
> }
>
> I agree. I'm aiming (open to revision) to spend a reasonable amount of energy
> on harvesting IP, acknowledging that one must make sacrifices for the greater
> good of innovation and its dissemination. My problem is with those that claim
> ownership through exploitation. It would be great to arm the Donna's of the
> world.
>
> Nick Ragousis wrote {
>
> SECOND. Whether it's possible to develop IP of significance on one's own ...
> well that depends greatly on the resources and perspectives you can engage
> while advancing that protected work. And the matters addressed in "FIRST."
>
> }
>
> Great. I expect even less sleep while being part of establishing an open yet
> secure model of innovation within a bubble.
>
> Nick Ragousis wrote {
>
> SECOND. Whether it's possible to develop IP of significance on one's own ...
> well that depends greatly on the resources and perspectives you can engage
> while advancing that protected work. And the matters addressed in "FIRST."
>
> }
>
> Usability testing helped me burst bubbles. Now we are blowing a better bubble
> but old habits die hard - IP is inhaling again and is trying to steal the
> show.
>
> Nick Ragousis wrote {
>
> I underscore that these (in this "THIRD" consideration) would be innovations
> in design processes (making a distinction from innovations in usability
> methods) or innovations in design solutions (from particular designs, to, say,
> widgets or software algorithms that you'll only license after conducting
> usability under contract in your labs).
>
> The overriding question remains, tho': What is your team' business?
>
> }
>
> To build innovative ...
>
> Nick Ragousis wrote {
>
> IP that enables your organization to assess the solution paths, to recommend
> particular design steps/work, and to offer particular technology to assist in
> that (either the design work, or the solutions).
>
> }
>
> Hopefully something interesting and unexpected will come from this. Time to
> capitalize.
>
>
> Sincerely,
> Richard
>

A couple of thoughts:

How close are you to the University? Usually, universities have complicated
patent and invention policies that may have an impact.

Secondly, for people who work for others: generally (unless you have a prior
agreement) your work (regardless of the level of supervision or financial
commitment) is owned lock stock and barrel by your employer.

That being said these 'partnerships' can almost always be fouled later on
because of incomplete agreements at the start. So rather than lose sleep
hire a lawyer and negotiate a deal.

Ivan Hoffman http://www.ivanhoffman.com/ has written extensively on these
sorts of issues and you might want to visit his site.

Cheers,

Bernie

--
Bernie Monette
InterActive Arts
Internet Presence Management
http://www.iaai.ca monette at iaai.ca 416 469 4337

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