On a crisp fall day, you notice the perfect maple leaf lying on the pavement. You know that you have to share this with the world, but how will you let others know how great this leaf is? After all, this leaf is awesome. In the near future, simply joining your hands in a heart shape may allow you to share an image with your social networks.

Google recently patented three hand gestures, presumably for use with Google Glass, that would potentially allow users to interact with the device and their environment. Currently, Google Glass utilizes voice commands and a touchpad as controls. According to the patent, these gestures will provide user input to a wearable computing device or a head-mounted device (Google Glass, in this case) to indicate items that "may be considered or classified as important or worthy of attention or notice". The device would recognize these gestures and then carry out particular actions in response. The device would then transmit the image to a “social networking service”.

The three hand gestures provided in the patent are the “heart”, the “frame” and the “loop”. When the device recognizes the user making a "heart" gesture with two hands it will generate an image bounded by the hands and will in this case, add a qualitative ranking to the image, similar to “liking” a post on social networks. The second gesture, the “frame”, involves making a frame with the user’s thumb and forefinger finger at a right angle in the same way that we think of directors framing a shot.  An image is generated by the device, bounded by the diagonal right angles, uploaded to a server (and potentially to a social networking service). Finally, the “loop” requires the user to trace a closed loop with their forefinger and the device will determine the bounds of that loop, generate the corresponding image, and upload the image to a server (or again, to a social networking service).

Of course, patenting hand gestures is not a new phenomenon.  There are several existing patents for physical gestures associated with an invention. These functional gestures are increasing in popularity with the rise of touch screens and motion sensing devices. Some recent examples include Apple’s patent for “unlocking a device by preforming gestures on an unlock image” and Telefonaktiebolaget L M Ericssons’ patent on “gesture-based control of IPTV system”.

Patents for a gesture associated with functions like zoom, unlock, or even making a frame, may not be all that controversial as a patentable subject matter in my view. The gesture as part of the patent is associated with a function, and a particular device, which takes the gesture into the realm of patentable subject matter.  Even though the frame is a common gesture, it makes functional sense as a way to bound the image to be captured when using a wearable device that utilizes your field of vision. This gets interesting when it comes to a patent claim that the heart symbol indicates a qualitative ranking, as this gesture already exists in pop culture. From pop star to ad campaigns, individuals use the gesture to imply that they like the thing they are “heart-ing”.

Clearly, Google did not create the "hand heart", but they have functionally integrated it into an invention. Since the patent is for use in association with a device like Google glass, individuals can continue to use the gesture itself without infringing the patent. However, it does raise the question about the future of gesture-based control as gestures become increasingly functional and integrated with technology. Companies may have an incentive to integrate gestures existing in the public domain that are imbued with meaning and already familiar to users, rather than creating and branding new gestures. These popular gestures could then effectively be restricted to technological commands associated with a particular device and fall into disuse among those without that particular device. As the pool of potential gestures in the public domain diminishes, could we one day see a gesture patent thicket?

If use of the hand heart denotes “liking” something and Google Glass becomes pervasive, could use of the hand heart become restricted to Google glass users? In the future could your gesticulation be determined by which products you use?  For example, could Facebook patent “thumbs-up” to indicate “liking”? “Thumbs-up” and “heart” could become the modern day Montagues and Capulets.

Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.